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| Otis Wilson Declaration - as text |
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Sunday, September 19 2004 @ 05:34 AM EDT
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Here is the Otis Wilson Declaration as text, thanks to Steve Martin. Mr. Wilson was with AT&T, the "head of the group responsible for licensing the UNIX System V operating system worldwide"; he signed the 1985 AT&T-IBM contract [text], and he says it all in his paragraph 15: "AT&T and USL did not intend to assert ownership or control over modifications and derivative works prepared by our licensees, except to the extent of the original UNIX System V source code included in such modifications and derivative works. Although the UNIX System V source contained in a modification or derivative work continued to be owned by AT&T or USL, the code developed by or for the licensee remained the property of the licensee, and could therefore be used, exported, disclosed or transferred freely by the licensee." He mentions a couple of reasons why the contract was not intended to control the work of licensees: they wouldn't have agreed to sign the contract if it had such onerous terms, and AT&T was under antitrust scrutiny at the time, and the company was extremely sensitive about potential anticompetitive actions, or even the appearance of them.
For that reason, when licensees asked for reassurance that the terms were not seeking such control, they happily provided written or oral clarification, in IBM's case written, in the Side Letter [text]. His understanding was that IBM fully owns any modifications of and derivative works based on UNIX System V prepared by or for IBM, and that they could freely use, copy, distribute or disclose that code, so long as it didn't include any material portion of the original source code of AT&T's. However, he adds that the Side Letter did not represent a change, just a clarification, because the original contract also did not seek such control of licensees' code, a point that has relevance to the Sequent matter, since in that case there was no Side Letter. He goes on to explain the $ echo newsletter. It was, he says a way to publish guidance for all licensees. So many questions were raised by licensees that AT&T decided to fix the contracts, the standard one, to be more clear, and they used the newsletter to let everyone know. "This change was not intended to alter the meaning of the software agreements, but was meant only to clarify the original intent of Section 2.01," he says. (See April and August $ echo newsletters.) You can see the new language in AT&T's 1987 contract with, of all people, oldSCO, the Santa Cruz Operation, which is attached as Exhibit 10 to the declaration: "AT&T-IS claims no ownership interest in any portion of such a modification or derivative work that is not part of a SOFTWARE PRODUCT." If SCO had this language in its own contract, how can it ask us to believe their derivative code theory? Or even that they didn't know any better when offering it? That is a sincere question. Maybe they never looked at this contract, having bought whatever they bought so much later in time? Didn't know about it, maybe? I can't answer the question. I just know it is the right question to ask. I don't recall seeing this document before in this case; it was the only attachment Groklaw didn't already have. (Cf. also the Chrysler contract.) This clarification was intended, he says, to cover everyone, and no one was required to get it in writing. "Although we made 'specimen copies' of the revised software agreement available to our licensees, we did not require that our licensees enter into new agreements. We intended for all of our UNIX System V licensees to receive the benefit of the changes and clarifications we outlined at our seminars and in the newsletter." That would seem to cover Sequent not having a side letter, no? The bottom line is in paragraphs 28 and 29, where he calls SCO's derivative code theory "clearly wrong": "28. . . .Therefore, IBM and Sequent are free, under the IBM Agreements and the Sequent Agreements, to open source all of AIX and Dynix/PTX other than those portions of the original UNIX System V source code included therein. Even portions of the original UNIX System V source code included in AIX and Dynix/PTX may be open sourced to the extent permitted by the IBM Agreements or the Sequent Agreements. "29. I do not believe that anyone at AT&T or USL intended these agreements to be construed in this way. In all cases, modifications and derivative works are not subject to the confidentiality and other restrictions contained in the license agreements (except for any protected UNIX System V source code provided by AT&T or USL actually included therein) because they are owned by the licensee." He also mentions some other documents, which are available on Groklaw, the Sublicensing Agreement and Substitution Agreement, SFER-00015B, the Sequent Software Agreement, the Sequent Sublicensing Agreement, and the Sequent Substitution Agreement.
********************************
SNELL & WILMER LLLP
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone]
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.
________________________________
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
_______________________________
DECLARATION OF OTIS L. WILSON
_______________________________
I, Otis L. Wilson, declare as follows:
1. I was responsible for licensing operating systems under the UNIX brand from 1980 until 1991, first with American Telephone and Telegraph Company ("AT&T") and then with its subsidiary, UNIX System Laboratories, Inc. ("USL"). Initially, I was on the staff responsible for negotiating license agreements with our customers. From 1983 until I retired in 1991, I was the head of the group responsible for licensing the UNIX System V operating system worldwide.
2. This declaration is submitted in connection with the lawsuit entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil Action No. 2:03CV-0294 DAK (D. Utah 2003). Except as stated otherwise, this declaration is based on personal knowledge and review of the documents referenced herein.
I. Roles and Responsibilities Regarding UNIX.
3. I joined AT&T in 1963. In 1980, after completing a company-sponsored management training program, I left the Princeton office of AT&T to join the Patent and Licensing Group in Greensboro, North Carolina. I was responsible for licensing operating systems under the UNIX brand beginning in 1980. Initially, I was on the staff responsible for negotiating license agreements with our customers. Beginning in 1983 until I retired in 1991, I was the head of the group responsible for licensing the UNIX System V operating system worldwide.
4. In 1989, AT&T separated the organizations responsible for UNIX, and associated system software products and services, into a business unit called UNIX Software Operation. In 1991, the rights to UNIX operating systems and related products, technology and intellectual property were transferred to USL. I remained the head of the licensing group throughout these changes.
5. During the period from 1980 to 1991, AT&T and USL licensed UNIX source code, including UNIX System V source code, to hundreds of licensees. Nearly every UNIX license agreement executed by AT&T during this period was signed by me or on my behalf by people that reported to me.
6. The UNIX System V source code license agreements generally included a number of "standard" form agreements with each licensee. The standard software agreement granted the licensee the right to use and modify the source code for its own internal business purposes. In addition, many licensees were parties to sublicensing agreements, which granted the licensee the right to furnish sublicensed products based on UNIX System V to customers in object code format. A substitution agreement provided that the software agreement and, if applicable, the sublicensing agreement, replaced earlier agreements relating to UNIX System V software.
7. I am familiar with the following license agreements between AT&T Technologies, Inc. and International Business Machines Corporation ("IBM"), which were negotiated under my supervision while I was head of the licensing group:
• the Software Agreement (Agreement Number SOFT-00015) dated February 1, 1985 (the "IBM Software Agreement");
• the Sublicensing Agreement (Agreement Number SUB-00015A) dated February 1, 1985 (the "IBM Sublicensing Agreement");
• the Substitution Agreement (Agreement number XFER-00015B) dated February 1, 1985 (the "IBM Substitution Agreement"); and
• the letter agreement dated February 1, 1985 (the "IBM Side Letter").
David W. Frasure, who reported to me, signed these agreements for me on behalf of AT&T. True and correct copies of these agreements are attached hereto as Exhibits 1 through 4. I refer to these agreements as the "IBM Agreements."
8. I am also familiar with the following agreements between AT&T Technologies, Inc. and Sequent Computer Systems, Inc. ("Sequent") and which were also negotiated under my supervision:
• the Software Agreement (Agreement Number SOFT-000321) dated April 18, 1985 (the "Sequent Software Agreement");
• the Sublicensing Agreement (Agreement Number SUB-000321A) dated January 28, 1986 (the "Sequent Sublicensing Agreement"); and
• the Substitution Agreement (Agreement Number XFER-000321B) dated January 28, 1986 (the "Sequent Substitution Agreement").
I signed these agreements on behalf of AT&T. True and correct copies of these agreements are attached hereto as Exhibits 5 through 7. I refer to these agreements as the "Sequent Agreements." I understand that Sequent has been acquired by, and merged into, IBM.
9. As a result of my role as head of the group responsible for negotiating the IBM Agreements and the Sequent Agreements, and hundreds of other UNIX System V license agreements, I have a thorough understanding of these agreements and what the parties intended them to accomplish.
II. Rights and Obligations of UNIX System V Licensees.
10. From 1983 until 1991, while I was responsible for licensing UNIX System V for AT&T and USL, my group licensed UNIX System V source code and related materials to a large number of licensees around the world.
11. The standard software agreement that we used to license UNIX System V source code and related materials sets forth the various rights given to licensees and the restrictions imposed on the licensees with respect to such materials, which were called the "SOFTWARE PRODUCT" or "SOFTWARE PRODUCTS" in the agreement.
12. Among the standard provisions in our early software agreement (including in the IBM Software Agreement and the Sequent Software Agreement) were the following:
• Section 2.01: "AT&T grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE's own internal business purposes".
• Section 2.05: "No right is granted by this Agreement for the use of SOFTWARE PRODUCTS directly for others, or for any use of SOFTWARE PRODUCTS by others."
• Section 4.03: "LICENSEE agrees that it will not, without the prior written consent of AT&T, export, directly or indirectly, SOFTWARE PRODUCTS covered by this Agreement to any country outside of the United States."
• Section 7.06(a): "LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T."
• Section 7.10: "Except as provided in Section 7.06(b), nothing in this Agreement grants to LICENSEE the right to sell, lease or otherwise transfer or dispose of a SOFTWARE PRODUCT in whole or in part."
These provisions set forth our licensees' rights, as they relate to the UNIX System V source code and related materials — the "SOFTWARE PRODUCT" or "SOFTWARE PRODUCTS" — that AT&T provided to them. At least as I understood these sections and discussed them with our licensees, they do not, and were not intended to, restrict our licensees' rights to use, export, disclose or transfer their own products and source code, as long they did not use, export, disclose or transfer AT&T's UNIX System V source code along with it. I never understood AT&T's software agreements to place any restrictions on our customers' use of their own original work.
13. AT&T's standard software agreements also granted licensees the right to modify UNIX System V source code and to prepare derivative works based upon the code. Section 2.01 of our early software agreement, including the IBM Software Agreement and the Sequent Software Agreement, included the following language:
Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.
14. As my staff and I communicated to our licensees, this provision was only intended to ensure that if a licensee were to create a modification or derivative work based on UNIX System V, any material portion of the original UNIX System V source code provided by AT&T or USL that was included in the modification or derivative work would remain subject to the confidentiality and other restrictions of the software agreement. As we understood Section 2.01, any source code developed by or for a licensee and included in a modification or a derivative work would not constitute "resulting materials" to be treated as part of the original software product, except for any material proprietary UNIX System V source code provided by AT&T or USL and included therein.
15. AT&T and USL did not intend to assert ownership or control over modifications and derivative works prepared by our licensees, except to the extent of the original UNIX System V source code included in such modifications and derivative works. Although the UNIX System V source contained in a modification or derivative work continued to be owned by AT&T or USL, the code developed by or for the licensee remained the property of the licensee, and could therefore be used, exported, disclosed or transferred freely by the licensee.
16. I do not believe that our licensees would have been willing to enter into the software agreement if they understood Section 2.01 to grant AT&T or USL the right to own or control source code developed by the licensee or provided to the licensee by a third party. I understood that many of our licensees invested substantial amounts of time, effort, and creativity in developing products based on UNIX System V. The derivative works provision of the software agreement was not meant to appropriate for AT&T or USL the technology derived by our licensees.
17. In fact, some licensees sought to clarify that, under the agreements, the licensee, not AT&T or USL, would own and control modifications and derivative works prepared by or for the licensee (except for any original UNIX System V source code provided by AT&T or USL and included therein). We provided such clarification when asked because that is what we understood the language in the standard software agreement to mean in any event. In some cases we provided this clarification orally and in some cases we provided it in writing.
18. In fact, although I am not a lawyer, it was my view at the time that we could not claim any rights to non-UNIX System V code source (as the plaintiff here appears to be doing) without raising serious antitrust issues. In light of the divestiture of AT&T around that time, we as a company were very concerned with the potential anticompetitive effects of our actions. As a result, one of the reasons we made clear to our licensees that our UNIX System V software agreements did not impose any restrictions on the use or disclosure of their own original code, except insofar as it included UNIX System V code, was to avoid any appearance of any impropriety.
19. We provided IBM with just such a clarification in Paragraph A.2 of the IBM Side Letter:
Regarding Section 2.01, we agree that modifications and derivative works prepared by or for [IBM] are owned by [IBM]. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with [AT&T].
I understood this language to mean that IBM, not AT&T or USL, would have the right to control modifications and derivative works prepared by or for IBM. IBM (like all licensees under the agreements) fully owns any modifications of and derivative works based on UNIX System V prepared by or for IBM, and can freely use, copy, distribute or disclose such modifications and derivative works, provided that IBM does not copy, distribute or disclose any material portions of the original UNIX System V source code provided by AT&T or USL (except as otherwise permitted by the IBM Agreements).
20. Clarifications of the kind reflected in Paragraph A.2 of the IBM Side Letter did not represent a substantive change to the standard software agreement, since AT&T and USL never intended to assert ownership or control over modifications and derivative works prepared by licensees, except to the extent of any material portions of the original UNIX System V source code provided by AT&T or USL and included in such modifications and derivative works.
21. Because of numerous inquiries we received from licensees, my licensing group further clarified the meaning of Section 2.01 of our software license agreements at seminars we organized for licensees and in our "$ echo" publication. $ echo was a newsletter that we published for all UNIX System V licensees to keep them informed of AT&T's policies with respect to UNIX System V. We intended for our guidance in the newsletter to apply to all of our UNIX System V licensees.
22. The April 1985 edition of $ echo, a true and correct copy of which is attached hereto as Exhibit 8, describes presentations made by a member of my licensing group, Mr. Frasure, outlining changes that AT&T intended to make to the licensing and sublicensing agreements as a result of discussions that I and others in the group had with our licensees. I personally reviewed and approved the changes that Mr. Frasure discussed with our licensees at the UNIX seminars.
23. As discussed in the newsletter, among the changes we decided to implement, and which were announced at the seminars by Mr. Frasure, were "[l]anguage changes ... to clarify ownership of modifications or derivative works prepared by a licensee."
24. The August 1985 edition of $ echo, a true and correct copy of which is attached hereto as Exhibit 9, describes these changes in detail. With respect to Section 2.01, the newsletter states:
Section 2.01 - The last sentence was added to assure licensees that AT&T will claim no ownership in the software that they developed -- only the portion of the software developed by AT&T.
This change was not intended to alter the meaning of the software agreements, but was meant only to clarify the original intent of Section 2.01. We intended only to make clear to our licensees that AT&T, and later USL, did not claim any right to the licensees' original work contained in modifications or derivatives of UNIX System V.
25. The new language is reflected, for example, in Section 2.01 of a software agreement between AT&T Information Systems Inc. and The Santa Cruz Operation, Inc. entered into in May 1987, a true and correct copy of which is attached hereto as Exhibit 10. That agreement includes the following language:
Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided that any such modification or derivative work that contains any part of a SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such SOFTWARE PRODUCT. AT&T-IS claims no ownership interest in any portion of such a modification or derivative work that is not part of a SOFTWARE PRODUCT. (emphasis added).
As we communicated at our seminars and in our newsletters to UNIX System V licensees, this new language was intended only to clarify the language in the original Section 2.01, not change its meaning. My licensing group interpreted the language of the original Section 2.01 and this revised Section 2.01 in exactly the same way.
26. Although we made "specimen copies" of the revised software agreement available to our licensees, we did not require that our licensees enter into new agreements. We intended for all of our UNIX System V licensees to receive the benefit of the changes and clarifications we outlined at our seminars and in the newsletter.
27. Whether or not we entered into a side letter or other agreements with our licensees to clarify the treatment of modifications and derivative works, or altered the language of Section 2.01, AT&T's and USL's intent was always the same. We never intended to assert ownership or control over any portion of a modification or derivative work that was not part of the original UNIX System V source code provided by AT&T or USL. The licensee was free to use, copy, distribute or disclose its modifications and derivative works, provided that it did not use, copy, distribute, or disclose any portions of the original UNIX System V source code provided by AT&T or USL except as permitted by the license agreements.
28. My understanding is that IBM's AIX and Sequent's Dynix/PTX operating system products include some UNIX System V source code. I do not know whether AIX and Dynix/PTX are sufficiently similar to UNIX System V that they would constitute modifications of, or derivative works based on, UNIX System V. However, even if AIX or Dynix/PTX were modifications of, or derivative works based on, UNIX System V, IBM and Sequent are free to use, export, disclose or transfer AIX and Dynix/PTX source code, provided that they do not use, export, disclose or transfer any UNIX System V source code provided by AT&T or USL (except as otherwise permitted by the agreements). Therefore, IBM and Sequent are free, under the IBM Agreements and the Sequent Agreements, to open source all of AIX and Dynix/PTX other than those portions of the original UNIX System V source code included therein. Even portions of the original UNIX System V source code included in AIX and Dynix/PTX may be open sourced to the extent permitted by the IBM Agreements or the Sequent Agreements.
29. I understand that plaintiff claims that IBM and Sequent have breached the IBM Agreements and the Sequent Agreements by improperly using, exporting, disclosing or transferring AIX and Dynix/PTX source code, irrespective of whether IBM or Sequent have disclosed any specific protected source code copied from the UNIX System V source code provided by AT&T or USL. In my view, these claims are inconsistent with the provisions of the IBM Agreements and the Sequent Agreements. I do not believe that anyone at AT&T or USL intended these agreements to be construed in this way. In all cases, modifications and derivative works are not subject to the confidentiality and other restrictions contained in the license agreements (except for any protected UNIX System V source code provided by AT&T or USL actually included therein) because they are owned by the licensee.
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 went out of our way to assure our licensees that this is not what the agreements meant.
31. I declare under penalty of perjury that the foregoing is true and correct.
Executed: April 26, 2004.
Greensboro, North Carolina
______[signature]_____
Otis L. Wilson
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| Authored by: archonix on Sunday, September 19 2004 @ 06:08 AM EDT |
Foist and a halfth... oh never mind that. It be talk like a pirate day. Yarr.
---
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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- AT&T, not IBM - Authored by: Anonymous on Sunday, September 19 2004 @ 06:13 AM EDT
- YES! AT&T, not IBM - Authored by: Anonymous on Sunday, September 19 2004 @ 07:17 AM EDT
- AT&T, not IBM - Authored by: PJ on Sunday, September 19 2004 @ 07:33 AM EDT
- AT&T, not IBM - Authored by: Anonymous on Sunday, September 19 2004 @ 06:01 PM EDT
- Corrections - Authored by: ChrisP on Sunday, September 19 2004 @ 08:21 AM EDT
- other topics - Authored by: Anonymous on Monday, September 20 2004 @ 12:44 AM EDT
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| Authored by: archonix on Sunday, September 19 2004 @ 06:10 AM EDT |
Just to get started:
MS Tries to do Pirate Talk,
Fails.---
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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- Something new is afoot... - Authored by: Anonymous on Sunday, September 19 2004 @ 08:54 AM EDT
- Pirate Talk - Authored by: bsm2003 on Sunday, September 19 2004 @ 11:37 AM EDT
- Montery fraud or sound business tactics? - Authored by: gribnick on Sunday, September 19 2004 @ 11:37 AM EDT
- Why OSS/FS? Look at the numbers! - Authored by: surak on Sunday, September 19 2004 @ 11:41 AM EDT
- Microsoft the Innovator? - Authored by: Anonymous on Sunday, September 19 2004 @ 12:52 PM EDT
- A decent reference please - Authored by: Anonymous on Sunday, September 19 2004 @ 01:09 PM EDT
- Not a very good piece, IMO. - Authored by: Anonymous on Sunday, September 19 2004 @ 07:17 PM EDT
- Not a very good piece, IMO. - Authored by: Nivuahc on Sunday, September 19 2004 @ 08:00 PM EDT
- Not a very good piece, IMO. - Authored by: Anonymous on Sunday, September 19 2004 @ 08:31 PM EDT
- A very good piece, IMO. - Authored by: J.F. on Sunday, September 19 2004 @ 11:00 PM EDT
- Plug and Pray - Authored by: Anonymous on Sunday, September 19 2004 @ 11:50 PM EDT
- COM - Authored by: Anonymous on Monday, September 20 2004 @ 01:04 AM EDT
- Blemishes - Authored by: Anonymous on Monday, September 20 2004 @ 01:36 AM EDT
- COM - Authored by: Anonymous on Monday, September 20 2004 @ 10:00 AM EDT
- Not a very good piece, IMO. - Authored by: Anonymous on Sunday, September 19 2004 @ 11:12 PM EDT
- Moot, shmoot. - Authored by: Anonymous on Monday, September 20 2004 @ 02:48 AM EDT
- Plug and Play has two (or more) meanings - Authored by: Anonymous on Monday, September 20 2004 @ 12:57 AM EDT
- You do not understand COM - Authored by: Anonymous on Monday, September 20 2004 @ 01:29 AM EDT
- COM vs. RPC. - Authored by: Anonymous on Monday, September 20 2004 @ 04:31 AM EDT
- RPC can be local too - Authored by: Anonymous on Monday, September 20 2004 @ 10:09 AM EDT
- COM vs. RPC. - Authored by: Anonymous on Monday, September 20 2004 @ 10:58 AM EDT
- COM vs. RPC. - Authored by: Anonymous on Monday, September 20 2004 @ 02:53 PM EDT
- what allowed for the notions of "plug-ins" for Netscape - Authored by: jesse on Monday, September 20 2004 @ 11:32 AM EDT
- Plug and Play--patented in the 60s - Authored by: Anonymous on Thursday, September 23 2004 @ 08:34 PM EDT
- Why OSS/FS? Look at the numbers! - Authored by: Anonymous on Sunday, September 19 2004 @ 07:17 PM EDT
- "Free as in Market" - Authored by: MplsBrian on Monday, September 20 2004 @ 09:55 AM EDT
- I think I've got it - why SCO want every version of AIX - Authored by: emmenjay on Sunday, September 19 2004 @ 12:23 PM EDT
- Linux on Nuke Sub - Authored by: bsm2003 on Sunday, September 19 2004 @ 01:03 PM EDT
- Micro$oft's new threat - Authored by: Anonymous on Sunday, September 19 2004 @ 02:10 PM EDT
- Avoid the eye patch: install a decent OS ;-) - Authored by: cheros on Sunday, September 19 2004 @ 04:59 PM EDT
- 3rd ammended complaint - Authored by: Khym Chanur on Sunday, September 19 2004 @ 05:17 PM EDT
- Why all these declarations? - Authored by: Fredric on Sunday, September 19 2004 @ 06:42 PM EDT
- Off Topic links, posts etc. - Authored by: Anonymous on Sunday, September 19 2004 @ 07:24 PM EDT
- Help finding documents - Authored by: devnull13 on Sunday, September 19 2004 @ 07:50 PM EDT
- No comparison: how did SCOG find matches? - Authored by: Anonymous on Sunday, September 19 2004 @ 08:23 PM EDT
- Hidden posts - Authored by: Anonymous on Sunday, September 19 2004 @ 09:22 PM EDT
- Hidden posts - Authored by: J.F. on Sunday, September 19 2004 @ 11:21 PM EDT
- What's unicyclist.com and what does it have to do with us? - Authored by: Anonymous on Monday, September 20 2004 @ 04:03 AM EDT
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| Authored by: Anonymous on Sunday, September 19 2004 @ 06:25 AM EDT |
| etc. :-) [ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 06:37 AM EDT |
I mean, we now have had plenty of significant witnesses saying that SCO's
interpretation of the contract is a load of bull. I can't remember any
witnesses outside of current SCO saying differently.
SCO claims that this case should only be about contracts, not about copyright
violations, and so CC10 should be stricken. And they want IBM to deliver loads
of material so that they may be able to prove copyright violation that this case
is not supposed to be about.
I mean, the logical thing to do now would be to strike CC10, to end discovery
(as SCO wants to discover things that according to them are not even relevant to
the case), and to place all the statements about the contract before a jury.
Does it even need a jury for an open-and-shut case like this?
The only reason not to do this would be to cut SCO's dance all across the courts
short, and save other courts the trouble of having to deal with the copyright
claims of SCO.
But that can't be accomplished completely, anyhow, since the judge has no real
business taking a look at _any_ purported copyright violation, only those of
IBM.[ Reply to This | # ]
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- What remains? - Authored by: brian on Sunday, September 19 2004 @ 08:04 AM EDT
- What remains? - Authored by: Anonymous on Sunday, September 19 2004 @ 06:52 PM EDT
- What remains? ... Summary Judgement!! - Authored by: LarryVance on Sunday, September 19 2004 @ 09:15 AM EDT
- What remains? - Authored by: marbux on Sunday, September 19 2004 @ 09:36 AM EDT
- Misinformed post or clever troll? - Authored by: bbaston on Sunday, September 19 2004 @ 10:07 AM EDT
- What remains? - Authored by: darkonc on Sunday, September 19 2004 @ 11:03 AM EDT
- RIght. - Authored by: Anonymous on Monday, September 20 2004 @ 02:17 AM EDT
- You have it 180 degrees backward - Authored by: jbb on Sunday, September 19 2004 @ 02:14 PM EDT
- Purported copyright violation - a mis-understanding - Authored by: Anonymous on Sunday, September 19 2004 @ 02:31 PM EDT
- Toast is ready!..... - Authored by: Anonymous on Sunday, September 19 2004 @ 03:51 PM EDT
- What remains? - Authored by: mikeca on Sunday, September 19 2004 @ 04:18 PM EDT
- What remains? Troll Droppings - Authored by: producer on Sunday, September 19 2004 @ 04:27 PM EDT
- You obviously know how to let TSG win it all (n/t) - Authored by: Anonymous on Sunday, September 19 2004 @ 07:16 PM EDT
- What remains? - Authored by: blacklight on Sunday, September 19 2004 @ 07:25 PM EDT
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| Authored by: micheal on Sunday, September 19 2004 @ 06:57 AM EDT |
IANAL
Party A could sell a business to party B with the stipuation that party B will
not use the business to compete with party A. In this case, even though party B
"owns" the business, party A has retained some control. Yes, their is
(current) parole evidence that AT&T did not assert control of licensee code,
but the contract, side letters, and the $echo newsletter only talk about
ownership, not control.
However, IMHO since the contract does not clarify the status of
"control" of "derivitive" products not containing UNIX code,
ideas, etc., and since (as I understand from reading Groklaw) a contract must be
interprested in terms favaorable to the non-writing party, then the contract
does not give control to AT&T.
---
LeRoy -
What a wonderful day.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 07:12 AM EDT |
| "I never understood AT&T's software agreements..."
Is SCO going
to quote that, and move to strike the declaration?
-Cyp [ Reply to This | # ]
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- Hmmm... - Authored by: Greebo on Sunday, September 19 2004 @ 08:03 AM EDT
- Hmmm... - Authored by: Anonymous on Sunday, September 19 2004 @ 10:22 AM EDT
- Only... - Authored by: DaveAtFraud on Sunday, September 19 2004 @ 11:17 AM EDT
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| Authored by: jig on Sunday, September 19 2004 @ 07:19 AM EDT |
I think this makes IBM's plan clearer.
They file for the partial summary judgment, which puts a time limit on SCO
induced FUD in the Linux community while forcing SCO into a corner where they've
thrown all other claims out the window and now try to rely on far fetched
contract claims as a last ditch effort to show something that can't be decided
as a matter of law, or in other words something requiring more time and possibly
a jury.
But, all the time, IBM has this up their sleeve, and probably similar dialogues
about the contract covering Monterey.
I think IBM has made almost the best possible game plan to get this all over and
done with as quickly as possible. A couple weeks ago the chess move became
apparent, basically a fork (in the summary judgment and the countersuit over IBM
owned GPLed code in what SCO has distributed), but the future of the game was
still cloudy. Or at least it was to me.
These declarations are the end moves to a brilliant game, moves I didn't see as
part of the whole till now. I think SCO wants everyone to think they have an out
with the infamous emails, but my guess is that they are a well-laid trap. If SCO
goes for them, maybe IBM can have mate in just a few moves rather than in a
prolonged endgame. IBM has certainly spent enough time letting SCO build it's
own cage of idiotic, self-referencing statements, and once a chess player is
boxed in within his own pieces, well, the end is near.
I don't mean to sound like I'm gushing, but I really respect what IBM's lawyers
are trying to put together.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 08:06 AM EDT |
| ? [ Reply to This | # ]
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| Authored by: ChrisP on Sunday, September 19 2004 @ 08:41 AM EDT |
IMHO. It is of course no accident that SOFT 00302 was chosen to illustrate the
inclusion of the new language for 2.01. TSG will be presumed to know from their
predecessors in interest the meaning of the clause. I also see that the scanned
PDF is stamped "SCO CONFIDENTIAL DO NOT [unreadable]". Perhaps it
should have been sealed? :)
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: mhoyes on Sunday, September 19 2004 @ 10:11 AM EDT |
This would seem to conflict some with the Martin Pfeffer declaration, although
that one read like a lawyer talking and not wanting to be able to be pinned down
to any specifics.
How does the court system reconcile the differences in declarations such as
this? Especially when one is written very clearly and the other is written in a
legal style that seems to obfuscate the intent.
I wonder if it would help to compare them side by side and also compare the
positions of each person. We seem to have a person that says he was responsible
for the wording on the contracts, and here, we have the one that actually was
responsible for the execution of the contracts. One worked for AT&T in
general, and the other for USL.
just some ponderings,
meh[ Reply to This | # ]
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| Authored by: The_Pirate on Sunday, September 19 2004 @ 10:54 AM EDT |
Arr, Mateys -
The SCOundrels will walk the plank now, after a well dip in the chumbucket.
Can ye see the sharks circling?
Compliments to our fair wench, PJ! May you cutlass never rust![ Reply to This | # ]
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| Authored by: Thomas Frayne on Sunday, September 19 2004 @ 11:03 AM EDT |
I checked the April, 1985, $echo, and found
"Clarification of Ownership of Derived Works
• Language changes will be made to clarify ownership of modifications or
derivative works prepared by a licensee."
This is clear, contemporaneous support of the position that the side letter is a
clarification of the original intent of the contract, not a substantive
amemdment.
SCOG will have to provide enough factual evidence of the contrary position that
a reasonable jury could decide this issue in SCOG's favor in order to convince
the judge that SCOG has the right to control the use of Sequent's code.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 12:47 PM EDT |
Either I am confused or there is a common misconception. Everyone speaks about
two IBM licenses. One covers AIX the other covers Dynix. One is with Side Letter
the other without. I believe this is incorrect. IBM do have two licenses,
however they are about SysV code, not AIX or Dynix. Assume that IBM decides to
create new OS called ShmAIX and based on SysV code. Do they need to buy new
license from SCOG or the ones that it already has are enough? Can someone
clarify? If I am correct then absence of Side Letter for Dynix is a non-issue
regardless of does it change meaning of license of just clarifies it.
Andrew.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 12:51 PM EDT |
II. GRANT OF RIGHTS
2.01 AT&T grants to LICENSEE a personal, nontransferable and
nonexclusive right to use in the United States each SOFTWARE PRODUCT
identified in the one or more Supplements hereto, solely for LICENSEE'S own
internal business purposes and solely on or in conjunction with DESIGNATED
CPUs for such SOFTWARE PRODUCT. Such right to use includes the right to
modify such SOFTWARE PRODUCT and to prepare derivative works based on
such SOFTWARE PRODUCT, provided the resulting materials are treated
hereunder as part of the original SOFTWARE PRODUCT.
I assume that if the contract is "unambiguous" to both SCO and IBM,
then the
judge will use some standard definitions for "derivative works" and
"based on"
to determine what the contract meant as to what "resulting materials"
is
treated as "part of the original SOFTWARE PRODUCT".
Obviously SCO and IBM differ contentiously on the definition of "derivative
works" and "based on". To IBM, a derivative work based on
Software Product
is a work containing the original code of the Software Product. And work not
containing the original code is not a derivative work. I assume that IBM's
definitions are what are correct per copyright law and what the judge will use
if the contract is deemed "unambiguous" by both IBM and SCO.
Of course, all these declarations on behalf of IBM by the people involved in
the ATT-IBM contract negotiations clarify ambiguities if the contract is
ambiguous - which it seems is the best argument put forth by IBM for it's
purposes.
Isn't it best that IBM claim the contract is ambiguous, and thus allow
clarification by all these other people and the evidence?
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 01:29 PM EDT |
SCO's 8th cause of action is that IBM allegedly interfered with the Novell
contract in two ways:
1. Encouraging Novell to file conflicting copyright registrations
2. Encouraging Novell to issue a waiver under section 4.16(b) of the APA
It seems to me that this might be a good issue for IBM to file another PSJ
motion for, on say October 17th, or perhaps December 10th, or soon after
Point #1: If Novell were to win the dismissal with prejudice in SCOvNovell (SCO
reply due September 24), then it would seem that SCO can't prove Novell's
copyright registrations are somehow improper (because Kimball would have ruled
them "not malicious" and/or "privileged" by virtue of
asserting a potentially-valid rival claim).
And if SCO can't prove that Novell's copyright registrations are improper, then
whether IBM had a hand in them or not, I can't see that any IBM involvement
(even if there was some) would be improper.
Point #2: This waiver issue is already on the table for IBM's summary judgement
motion on SCO's contract claims. SCO's answer due October 16th, hearing due
December 9th. Any ruling on Novell's waiver in favor of IBM's position,
eliminates this issue.
Quatermass
IANAL IMHO etc
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 03:13 PM EDT |
| This is the ambigious clause SCO latched onto for their
extended
ownership/control claims.
Such right to use includes the
right to modify such
SOFTWARE PRODUCT to prepare derivative works based on
such
SOFTWARE PRODUCT, provided the resulting materials are
treated
as part of the original SOFTWARE PRODUCT.
In English,
'treated as part of' can mean 'treated as
though part of (even if not actually
part of)'.
Example
'in some countries soccer players are treated as
royalty' Soccer players are clearly not royalty, they
are treated as though
they were royalty.
AT&T and IBM and everyone else's
interpretation to date
was that AIX was to be treated as it would be if it
were
original SOFTWARE PRODUCT. However it is not part of the
SOFTWARE PRODUCT, only the original AT&T code is part of
the original
SOFTWARE PRODUCT.
SCO's re-interpretation of the contract is
that IBM's code
becomes part of the original SOFTWARE PRODUCT when it is
included in derivative works (AIX). The problem with this
interpretation is that other provisions in the contract
don't make sense
if the SOFTWARE PRODUCT is taken to be
the AT&T code plus any code
that IBM added since IBM's
code is not in the schedule in the agreement.
AT&T issued the following clause to clarify any ambiguity
in meaning, and it clarifies just this. The words in bold
are
changed/added to clarify just this ambiguity. It is
made clear that and IBM
code is not part of the SOFTWARE
PRODUCT, but is treated in the same way as
if it were, so
long as it contains any part of the SOFTWARE PRODUCT:
Such right to use includes the right to modify such
SOFTWARE
PRODUCT and to prepare derivative works based on
such SOFTWARE PRODUCT,
provided that any such
modification or derivative work that contains
any part of
a SOFTWARE PRODUCT subject to this Agreement is
treated hereunder the same as such SOFTWARE
PRODUCT.
AT&T-IS claims no ownership interest in any
portion of such a
modification or derivative work that is
not part of a SOFTWARE
PRODUCT.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 03:55 PM EDT |
As I understand it AT&T had restrictions placed on it as a result of the
antitrust that lead to it's break-up.
Do the descendants of AT&T continue to face those restrictions? Supposing
that SCO does in fact own IP originally from AT&T does it inherit some
antitrust restrictions???
Wouldn't it be ironic if IBM filed an anti-trust suit again SCO based on the
AT&T settlement.
That's just a dream tho - there won't be anything left to sue soon.
[ Reply to This | # ]
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| Authored by: overshoot on Sunday, September 19 2004 @ 04:30 PM EDT |
| Maybe it's me, but doesn't having this in evidence suggest that IBM could have
SCOX' contract claims ruled to be frivolous? SCOX' predecessor-in-interest's
SysV agreement goes into excruciating detail denying the very thing that they're
claiming against IBM -- which makes it very hard indeed to support an argument
that their contract claim was made in good faith.
I really do wonder if IBM
is going to make an example of BSF as well as SCO. The fashion now is for
lawsuit-by-proxy to avoid liability in countersuits, but if the law firms
involved get nuked it's going to be hard to find proxies. [ Reply to This | # ]
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| Authored by: El_Heffe on Sunday, September 19 2004 @ 04:59 PM EDT |
In addition to his work with AT&T, Otis Wilson's "Sittin on the DOck of
the Bay" is an all time classic song.
---
Take It Tux[ Reply to This | # ]
|
- hint: real initials = OR n/t - Authored by: Anonymous on Sunday, September 19 2004 @ 05:15 PM EDT
- Let's Not Forget - Authored by: ujay on Sunday, September 19 2004 @ 05:16 PM EDT
- Actually... - Authored by: tangomike on Sunday, September 19 2004 @ 05:21 PM EDT
- ... and also ... - Authored by: Totosplatz on Sunday, September 19 2004 @ 05:34 PM EDT
- Fa fa fa fa fa fa fa fa fa (sad song) - Authored by: Anonymous on Sunday, September 19 2004 @ 07:15 PM EDT
- Let's Not Forget - Authored by: Stumbles on Sunday, September 19 2004 @ 07:34 PM EDT
- Let's Not Forget - Authored by: Anonymous on Monday, September 20 2004 @ 05:53 AM EDT
- Let's Not Forget - Authored by: yarzer on Sunday, September 19 2004 @ 07:54 PM EDT
- Da Bears - Authored by: Anonymous on Monday, September 20 2004 @ 11:33 AM EDT
- Let's Not Forget - Authored by: frk3 on Monday, September 20 2004 @ 12:56 PM EDT
| |
| Authored by: Totosplatz on Sunday, September 19 2004 @ 05:54 PM EDT |
Paragraph 7.06 of SOFT-0015
provides that confidentiality need no longer be maintained for the SOFTWARE
PRODUCT if the SOFTWARE PRODUCT is exposed to public view.
Paragraph
7.06 says in part: 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.
Here's hoping that when TSCOG finally gets hammered out of
existence someone will at least publish the SOFTWARE PRODUCT in such a way that,
while not violating any copyrights, it is at least "available without
restriction to the general public"
That would certainly erect a
barrier against having to play out this particular game ever
again.
---
All the best to one and all. [ Reply to This | # ]
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| Authored by: blacklight on Sunday, September 19 2004 @ 07:04 PM EDT |
"He [Otis Wilson] mentions a couple of reasons why the contract was not
intended to control the work of licensees: they wouldn't have agreed to sign the
contract if it had such onerous terms, and AT&T was under antitrust scrutiny
at the time, and the company was extremely sensitive about potential
anticompetitive actions, or even the appearance of them." Otis Wilson
Otis Wilson's deposition is extremely valuable not only in that it gives
AT&T's interpretation contract straight from the horse's mouth, but also in
giving an ironclad rationale behind this interpretation. Otis Wilson's
deposition is an extraordinarily strong and clear vindication and confirmation
of the groklaw community's analysis of the terms of the AT&T contract.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 07:35 PM EDT |
First, TSG tries to obfuscate who they are. They are a shell corporation
created by moving assets around many times over many years using lost
contracts.
Second, TSG tries to confuse what UNIX is. They talk about none existent
versions like System IV. They say IBM has a license for System 3 which
never existed (actually System V release 3, 1984). They say Linux does not
exist because it is UNIX. They ignore that fact their flavors of UNIX are
obsolete and nearly extinct.
So, DO NOT CALL THEM SCO. They are NOT Santa Cruz Operations. They
are Caldera. They have no history with UNIX. They have been one of the
biggest Linux distributors in the world and the court and politicians need
to know this.
UNIX is a brand. It has transcended being an operating system. Open
Group owns the trademark and brands distros as UNIX after passing its
POSIX, ANSI, and Open/X test suites.
Every day or so I read someone who knows better confusing TSG with
Santa Cruz. Many of TSG's legal filings are political statements meant
for politicians who are clueless about FOSS. Don't make it too easy for
Microsoft.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 07:36 PM EDT |
Quick summary of the case so far:
- trade secrets claims withdrawn
- copyright infringement claims with zero proof (after over a year of discovery,
no less!)
- derivative works theory based on completely incorrect interpratation of the
contract (as we can plainly see from people that actually made the contract with
IBM)
- SCO infringement of IBM's (and others) copyright though its "binary only
licensing" of Linux (as we'll see fairly soon :-)
Are these people at SCO a joke or what? They should have stayed out of the
courtroom. That way, they would not be exposing themselves to all these
problems. Ah, forgot to mention the nuclear weapon - the patents. OUCH![ Reply to This | # ]
|
- Summary - Authored by: Anonymous on Sunday, September 19 2004 @ 08:58 PM EDT
- Summary - Authored by: hal9000 on Sunday, September 19 2004 @ 09:33 PM EDT
- Summary - Authored by: Anonymous on Monday, September 20 2004 @ 05:56 AM EDT
| |
| Authored by: blacklight on Sunday, September 19 2004 @ 07:42 PM EDT |
"You can see the new language in AT&T's 1987 contract with, of all
people, oldSCO, the Santa Cruz Operation, which is attached as Exhibit 10 to the
declaration:
"AT&T-IS claims no ownership interest in any portion of such a
modification or derivative work that is not part of a SOFTWARE PRODUCT."
If SCO had this language in its own contract, how can it ask us to believe their
derivative code theory? Or even that they didn't know any better when offering
it?"
I recall two things: (1) at the December 2003 hearing, Kevin McBride aka the
parking ticket god, said to Judge Wells that SCOG was no sense contesting IBM's
ownership of its technologies, but that SCOG was claiming control rights under
its (selective) interpretation of the AT&T contract; (2) A few weeks later,
Darl the Snarl was quoted as stating that the AT&T contract gives SCOG an
"easement" into the licensees's IP. In other words, SCOG recognized
the stumbling block and did try to come up with a rationale to weasel around it.
But I doubt the sophistry helps.
However, the phrase "AT&T claims NO [my capitals] ownership
interest" means just that: NO ownership interest - NO "control
rights" and NO easement because any assertion of "control rights"
or "easement" amounts to an assertion of an ownership interest.
[ Reply to This | # ]
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| Authored by: rand on Sunday, September 19 2004 @ 07:47 PM EDT |
For anyone who started the day as confused as I was, here's a rundown of the
contracts involved in
this case and the declarations of the signatories of those
contracts..
The Players
AT&T
Technologies
O. L.
Wilson
Deposition, (no date) IBM-228-34 (not
published
yet)
Declaration, December 2003 IBM-291-21
(not published
yet)
Declaration, April 26, 2004,
IBM-236-O
[pdf]
[text]
David W. Frasure
Deposition, December 8,
1992 IBM-291-9 (not
published yet)
Deposition, (no date)
IBM-228-35 (not published yet)
Declaration, March 28,
2004 IBM-236-E (not
published yet)
Jeffrey
Mobley
Declaration, July 26, 2004 IBM-236-I [pdf]
IBM
&nbs
p; R. A. McDonough
Declaration, April 30, 2004 IBM-236-H
(not published yet)
Craig Schneider
(No depostions
or declarations yet.)
Sequent
David P
Rodgers
Deposition (no date) IBM-193-I, IBM-206-S2,
IBM-228-36,
IBM-291-8 [SEALED]
Declaration, November 5,
2003
IBM-236-K [pdf]
SCO
Steven H Sabbath (Spelling?)
(No depostions or declarations yet.)
Novell
James Tolover (Spelling?)
(No depostions or declarations yet.)
The
Contracts
SOFT-00015
[pdf]
[text]
IBM: R A McDonough
ATTT: O L
Wilson
SUB-00015A [pdf]
[text]
IBM :R A McDonough
ATTT: O L
Wilson
Substitution Agreement XFER-00015B [pdf]
IBM: R
A McDonough
ATTT: O L Wilson
Letter Agreement February 1,
1985 [pdf]
ATTT:
David W. Frasure for OT Wilson
IBM: R A McDonough
*
Supplement 170
ATTT: O L Wilson [pdf]
IBM:
(unreadable)
Letter Agreement Amendment to Supplement 170
[pdf]
ATTT: O
L Wilson
IBM: (unreadable)
Amendment X [pdf]
[text]
IBM:Craig Schneider
SCO: Steven H Sabbath
(Spelling?)
Novell: James Tolover
(Spelling?)
SOFT-000321 [pdf]
Sequen
t: David P Rodgers
ATTT: O L Wilson
SUB-000321A [pdf]
Sequen
t: David P Rodgers
ATTT: O L Wilson
Substitution Agreement
XFER-000321B
[pdf]
Seque
nt: David P Rodgers
ATTT: O L Wilson
* The original
signature is almost unreadable, but a quick
photoenhancement makes me believe
it's McDonough. ---
Eat a toad for breakfast -- it makes the rest of the
day seem so much easier (Chinese (I'm told) proverb) (IANAL and so forth and so
on) [ Reply to This | # ]
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| Authored by: brian on Sunday, September 19 2004 @ 08:34 PM EDT |
"These provisions set forth our licensees' rights, as they
relate to the UNIX System V source code and related
materials - the "SOFTWARE PRODUCT" or "SOFTWARE PRODUCTS"
- that AT&T provided to them. At least as I understood
these sections and discussed them with our licensees, they
do not, and were not intended to, restrict our licensees'
rights to use, export, disclose or transfer their own
products and source code, as long they did not use,
export, disclose or transfer AT&T's UNIX System V source
code along with it. I never understood AT&T's software
agreements to place any restrictions on our customers' use
of their own original work."
I have often wondered about this section and feeling on
behalf of AT&T. It is like AT&T knew that UNIX was a dead
product and merely wanted to protect the parts that were
left after the BSD V AT&T settlement. I think it goes
deeper though. AT&T wasn't interested in bettering the
SysV code but merely holding onto what they already had.
The question that comes to mind is why? Why is it that
derivative code isn't contractually covered requiring
confidentuality? Why not make it so that derivative code
is put back into the SysV code tree? Why are companies
like IBM, Novell, and SGI not only allowed but encuraged
to better UNIX when AT&T would see nothing of that
betterment? None of those questions of why are answered in
this document. It is this generic question that really
needs answered if for no other reason than to shut SCO up
on that front. Any takers on these questions?
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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| Authored by: rsteinmetz70112 on Sunday, September 19 2004 @ 09:43 PM EDT |
Darl's interpretation of the $echo newsletter flies in the face of third grade
reading, since it uses the word clarification.
Although that word maybe for a higher grade.
---
Rsteinmetz
"I could be wrong now, but I don't think so."[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, September 19 2004 @ 11:34 PM EDT |
This is crucial evidence. As I see it, SCO breaches the intent of the
agreement for its own gain. That's a naughty. Whatever argument they make about
this deposition, they've so painted themselves in a corner with prior
statements, I cannot see a good judge taking their word, considering this is
information they've had all along.
Side letters cannot be claimed to be
at issue considering the $echo statement. This was a general modification
applying to all contracts, irrespective of additional agreements. SCO's argument
is completely fictitious. Q.E.D [ Reply to This | # ]
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| Authored by: Anonymous on Monday, September 20 2004 @ 07:33 AM EDT |
| He mentions a couple of reasons why the contract was not intended to
control
the work of licensees: they wouldn't have agreed to sign the contract
if it had
such onerous terms,
Is this kind of "is it reasonable we would have
agreed to this?" argument really
used in the legal process to decide what a
contract means?
I mean, SCO used the exact same kind of argument to explain
why they
believe they own the UNIX copyrights. "Well... well... what would we
have paid
all that money for, if it wasn't to get the copyrights?" I didn't buy
that
argument when it was SCO.
Surely the law doesn't interpret a contract
based on "Well, surely they
wouldn't have agreed to...?" Doesn't it have to be
judged on something much
more concrete (what were the terms--what does the
contract say)? And if so,
then what point is there to the above argument? [ Reply to This | # ]
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| Authored by: pooky on Monday, September 20 2004 @ 09:43 AM EDT |
Well now, this was an intersting read:
http://www.linuxworld.com/story
/46384.htm
So, apparently reporting the facts of a case and then
debating them is now called "propaganda". And BTW, in case you weren't aware of
this, Groklaw is a "pro-IBM" site as well.
I've long past the point of
feeling the need to respond to the idiocy of certain people, MOG included, but
this brings up an interesting angle. It seems to me (and this is a guess and not
based in fact at all) that SCO is now grasping at straws? I'll bet SCO thinks
they are going to lose on CC10 and knows what it means to do so (bye bye massive
damage award). I think they also know it is the beginning of the end of their
case unless they do something.
So they'll change the charge to fraud and
when they lose the other claims they'll say their satisified with the court's
resolution of the matter? At what point does a court put a stop to this
behavior? I know anyone can sue anyone but come on, this will be the 2nd major
case change in the past year shifting the complaint?
I suppose a big plus
side will be that the court records may be unsealed, although I'm questioning
SCOs (or rather MOG's) claim of the value of this as PR related. They wanted the
protective order in the 1st place to protect their rights. So they are now
willing to forgo that protection just to rebut the likes of Groklaw?
Of
course, there's also the possibility that MOG is completely wrong (go figure)
and all of this is hogwash. Wouldn't surprise me at all, she seems to be one of
these types who will write anything they call "controversial" to get people to
read it. I tend to think that controversial means wrong in most of those
cases.
-pooky ---
If at First You Don't Succeed, Skydiving Isn't
for You. [ Reply to This | # ]
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