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| Declarations of Wilson, Rodgers, and Mobley - About That Contract |
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Saturday, September 18 2004 @ 07:12 AM EDT
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Here are the Declaration of Otis Wilson, the Declaration of Jeffrey Mobley and the Declaration of David P. Rodgers, three on the list of declarations submitted in support of IBM's motion for partial summary judgment on the breach of contract claims. Each presents their understanding of the terms of the AT&T license agreements. Mobley is with IBM, Rodgers was with Sequent, and Wilson was the head of licensing operating systems under the UNIX brand at AT&T from 1980 to 1991, and all three agree that SCO's interpretation of the contract does not match their memory or understanding of rights that AT&T claimed.
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| Authored by: Anonymous on Saturday, September 18 2004 @ 07:42 AM EDT |
| For recent news stories [ Reply to This | # ]
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| Authored by: archonix on Saturday, September 18 2004 @ 07:48 AM EDT |
Three strikes, SCO is outa here...
Probably.
---
disclaimer: I'm human. I make mistakes too, so if I've made one here, tell me
nicely and I'll try to see it corrected in future.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 07:49 AM EDT |
NB: "Otis Wilson" links to a declaration by Joan Thomas.
moonbroth (on tour) [ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 08:38 AM EDT |
This seems very detailed and very damning to SCO's case. Under the
circumstances, I am not surprised by reports that they are digging into the
sealed record of the BSDi case (that they have previously stated in response to
an IBM dicovery request they do not have) to try to discredit it.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 12:04 PM EDT |
A safe haven for all those supporting TSG for a meeting of the minds.
If you love Darl, tell him here. Be assured, he reads Groklaw.
We know you exist! Darl told us. Don't be shy.
Rob[ Reply to This | # ]
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| Authored by: k12linux on Saturday, September 18 2004 @ 12:56 PM EDT |
In what universe could SCO actually believe that they have a case. Assuming
they managed to make it to a jury trial are they planning on bringing lay-people
and people who weren't there to testify on SCO's behalf? Do they actually think
a jury would give those witnesses more weight than IBM bringing *real* experts
and those who were actually present and involved with the contracts?
I just got a mental picture of the trial going something like this...
SCO Lawyer: "Mr. Smith, please tell the jury your involvment with IBM at
the time the contracts were signed."
Smith: "I worked at IBM in the mailroom."
SCO Lawyer: "Do you think SCO has a case?"
Smith: "Yes, I do."
SCO Lawyer: "Way do you feel SCO has a case?"
Smith: "Because IBM copied millions of lines of SysV UNIX code into Linux.
This is in direct violation with their contract with SCO."
SCO Lawyer: "Your honor, I'm done with this witness."
Judge: "Your witness."
IBM Lawyer: "Have you ever seen SysV UNIX source code or Linux source
code?"
SCO Lawyer: "Objection. Leading."
Judge: "What? No. Overruled."
SCO Lawyer: "Objection. Argumentative."
Judge: "No. No it is not argumentative. Overruled. Will the witness please
answer the question."
Smith: "No I have not."
IBM Lawyer: "Have you ever seen the contracts in question?"
SCO Lawyer: "Objection. Leading."
Judge: "Oh for crying out loud. No. Overruled!"
SCO Lawyer: "Objection. Hearsay your honor."
Judge: "Counsel please aproach the bench."
Judge: "Prosecution, if your next objection isn't legitimate I am going to
hold you in contemp. Do you understand?"
SCO Lawyer: "Yes your honor."
Judge: "Please answer the question."
Smith: "No, I have never seen the contracts."
IBM Lawyer: "No further questions."
Later in the trial IBM calls it's first witness...
IBM Lawyer: "Mr. Johnson is it correct that you were a lead developer of
SysV UNIX at AT&T?"
Witness: "Yes. I oversaw several working groups."
IBM Lawyer: "Were you also a programer, or primarily in a management
role?"
SCO Lawyer: "Objec... um never mind."
Witness: "I spent about 50% of my time actually coding and 50% in a
management capacity."
IBM Lawyer: "Have you looked into the alegation that Linux cnotains SysV
code?"
Witness: "Yes I have."
IBM Lawyer: "And why did you do that?"
Witness: "As a SysV developer I feel a bit of ownership of the code in
question. And as an avid Linux user I just wanted to know the truth."
IBM Lawyer: "Can you describe how you compared the code?"
Witness: "I first ran it through 3 different software analasys programs
which performed a total of 86 individual tests. I also spent about 200 hours
manually comparing Linux code to SysV UNIX source code in portions of the
operating systems which SCO claims are infringing."
IBM Lawyer: "Did you find any line-for-line identical code?"
Witness: "Yes. Bits here and there."
IBM Lawyer: "You did?"
Witness: "Yes, but everything I found in Linux was either legally included
under a BSD license, or came from the same freely available source that we also
included in SysV."
IBM Lawyer: "So where you found identical code, it was code that Linux
could legally use?"
Witness: "Yes, that's right."
IBM Lawyer: "Did you find any non-literal copying?"
Witness: "Very little and again nothing that wasn't completely legal for
Linux to use."
IBM Lawyer: "Did you find any literal or non-literal code copying from SysV
UNIX to Linux which could be viewed as infringing SysV copyrights at all?"
Witness: "No, I did not."
IBM Lawyer: "How many lines of code did you find that which could be
considered literal or non-literal copying from SysV?"
Witness: "Just over 600."
IBM Lawyer: "So not millions of lines then?"
Witness: "Ha ha.. no."
IBM Lawyer: "No further questions."
Judge: "Prosecution, your witness."
SCO Lawyer: "Mr. Johnson, have you stopped beating your wife?"
Judge: "Did you really just ask that in my courtroom?"
SCO Lawyer: "Um.. no further questions your honor."
-----------------------------------
(Ok.. yes, I was bored this morning.)
---
- SCO is trying to save a sinking ship by drilling holes in it. -- k12linux[ Reply to This | # ]
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| Authored by: Fourmyle on Saturday, September 18 2004 @ 02:04 PM EDT |
From Wilson's declaration.
" 30. In my view, any claim that the IBM Software Agreement and the
Sequent Software Agreement prohibit the use, export, disclosure or transfer of
any code
other than UNIX System V code is clearly wrong. Not only did we at AT&T not
intend
the agreements to be read that way, but we also wnet out of our way to assure
our
licensees that that is not what the agreements meant. "
Unless SCO can somehow discredit this, I have a hard time seeing any
"contractual dispute" lasting for more then a few seconds.[ Reply to This | # ]
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| Authored by: GLJason on Saturday, September 18 2004 @ 02:13 PM EDT |
9. It is my understanding that Sequent's Dynix products might
include some small parts of the licensed Unix System V source code, although I
do not personally know whether it does or not. I also do not know whether Dynix
is so similar to Unix System V that it may properly be viewed as a "derivative
work" based on Unix System V, particularly in light of the fact that Dynix
was originally created using Berkeley Software Design ("BSD") Unix as a base and
not AT&T Technologies' Unix System V. In any event, as I understood the
Sequent Agreements, Sequent was free to use, copy, distribute, or disclose Dynix
(including source code), provided that it did not copy, distribute or disclose
any Unix System V source code that might be contained therein (except as
otherwise permitted by the licensing agreements).
In that
case it would be ludicrous to think that section 2.01 could be construed, as SCO
claims, to cover any code that was ever compiled with Unix System V. As I've
said before, the ridiculous "mental contamination" clause 7.06 no longer applies
to any knowledge made available to the public.
I think nearly all the
"methods and concepts" that 7.06 protects were made available when BSD was
released without restriction. SCO has already admitted in court that there are
no trade secrets in Unix. The whole "methods and concepts" and therefore the
"non-literal copying" are based on trade secret protection, no matter what SCO
would have people believe. [ Reply to This | # ]
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| Authored by: Totosplatz on Saturday, September 18 2004 @ 02:57 PM EDT |
In Pfeffer's declaration he states that the definition of the term "SOFTWARE
PRODUCT" was intended to be the original AT&T Sys-V code as well as all
additions and modifications made by the licensee. He also claims to have been in
charge of licensing UNIX products.
Pfeffer's
Declaration, as text
In it, he says (in paragraph 6) Based on my
personal knowledge and professional experience at AT&T and USL (including my
extensive involvement in reading, drafting, approving, and enforcing such
license agreements as well as my communications with AT&T and USL employees
and licensees), I know that this language 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 prepare derivative works" based on the original
licensed material, including the UNIX source code and all of the proprietary
information reflected or embodied therein.
This directly contradicts
Wilson's declaration.
Here is the definition of the term "SOFTWARE
PRODUCT" from SOFT-0015:
1.04 SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS,
information used or interpreted by COMPUTER PROGRAMS and documentation relating
to the use of COMPUTER PROGRAMS. Materials available from AT&T for a
specific SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE
PRODUCT.
Is this disagreement consider a matter for a jury to
decide? Is Pfeffer perhaps saying something other than what it appears he is
saying?
---
All the best to one and all. [ Reply to This | # ]
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| Authored by: jacks4u on Saturday, September 18 2004 @ 02:58 PM EDT |
Bad links.
When I clicked "Declaration of Otis Wilson" above, link location:
http://www.groklaw.net/pdf/IBM-236-M.pdf I get a Declaration of Joan Thomas in
support of IBM's motion for PSJ on breack of contract claims. :(
Just thought I'd let you know...
jacks4u
[ Reply to This | # ]
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| Authored by: GLJason on Saturday, September 18 2004 @ 03:00 PM EDT |
I think it's important to note that these people point out that the agreements
were standard form agreements AT&T used whenever someone wanted to license
UNIX. IBM brought up case law that says any ambiguous terms in a contract that
is a standard form agreement should be construed in favor of the party that
didn't come up with the agreement. I think this is because if two parties work
out a contract togethether, they both have a say in all the terms. If one side
puts the agreement in front of another and has them sign it, they don't have as
much say in it.[ Reply to This | # ]
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- Eat your cake. - Authored by: Anonymous on Saturday, September 18 2004 @ 04:04 PM EDT
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| Authored by: blacklight on Saturday, September 18 2004 @ 06:25 PM EDT |
PJ put an end to Ken Brown's budding career as a UNIX/Linux commentator when she
published on groklaw the declarations of all if not almost all the individuals
that Ken Brown interviewed. I presume that the methodology was extremely
effective, because we haven't heard from our friend KB ever since - the kid is
probably not going to forgive any time soon for our prank, but I don't recall
the preservation of either his happiness or his mental equilibrium having ever
been a priority item with us. C'est la vie!
IBM is using the same declaration methodology on SCOG, which SCOG finds
obnoxious, alienating and off-putting - probably because it is so effective. Is
the fact that IBM is using the same approach a coincidence? Probably not.[ Reply to This | # ]
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| Authored by: Steve Martin on Saturday, September 18 2004 @ 06:41 PM EDT |
(NOTE: I've already done the Otis Wilson declaration
and shipped it to PJ.)
---
"When I say something, I put my name next to it." -- Isaac Jaffee, "Sports
Night"[ Reply to This | # ]
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| Authored by: John Hasler on Saturday, September 18 2004 @ 08:19 PM EDT |
"BSD" stands for "Berkeley Source Distribution", not
"Berkeley Software Design".
It's interesting that Dynix was based on BSD, though. That weakens TSG's case
considerably, I should think.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, September 18 2004 @ 11:31 PM EDT |
| Given the transcripts from the USL vs. UCB case that SCO 'happened' to have,
including our friend Mr. Wilson IIRC, USL was lying to someone, because he
clearly claimed that the license restricted the use of any derivative or
modification of the SysV code. USL claimed no ownership of the code they
didn't write, but they said over and over that it was impossible to develop such
code completely independently of the 'methods & concepts' or without 'mental
contamination' from the holy SysV code.
So, was USL simply blowing smoke at
IBM during the negotiations described in these depositions? Or were they just
totally desperate to prevent BSD from hitting the streets?
[ Reply to This | # ]
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