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Declaration of Scott Nelson - as text
Wednesday, November 03 2004 @ 04:01 AM EST

Here is the Declaration of Scott Nelson as text, thanks to thpr. It is yet another one of the group of declarations IBM submitted in support of its motion for partial summary judgment on breach of contract claims.

The operative paragraph is this one:

"5. Dynix contains code that was written by Sequent or IBM software engineers (or outside contractors retained by Sequent or IBM) for Dynix and code written by third parties and licensed to Sequent or IBM for inclusion in Dynix." [emphasis added]

IBM is submitting this testimony as evidence that SCO's theory of contract simply can't be right, because it would lead to the illogical conclusion that the third-party owned code that Sequent licensed for use in Dynix somehow also is SCO's to control. That would be an odd result indeed.

IBM calls it more than odd. On page 74 of their memorandum in support [PDF] of their motion, IBM calls it an "absurd and commercially unreasonable result." Under SCO's interpretation, it has the right to control every bit of AIX and Dynix. Not only would that co-opt decades of IBM's work, IBM says it "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."

So Mr. Nelson's declaration is included because it shows the court that this unreasonable result is not a hypothetical. Should the court find in favor of SCO's interpretation of the license agreement, all that licensed code, under their theory, would become SCO's to control forever. The third parties involved might like to have something to say about that. They didn't license it for use in Dynix with the understanding that they'd lose control of their code from that day forward or that by licensing it to IBM they were somehow also granting SCO rights to control who could do what with their code. In short, the judge is being informed that this decision could have far-reaching results that could upset the industry beyond what is reasonable or just, even if the judge were inclined to find for SCO. Not that it seems likely, but lawyers are supposed to leave no thought or question unanswered, and if they assert, they must prove. This is what I believe this declaration represents. Nothing submitted as a declaration is submitted without purpose, any more than you'd take a chess piece and just put it any old place without thinking about your strategy and goal and the conceivable reactions of your opponent. The law is more complex than chess, of course, because it's a three-party game, with the judge a player too.

IBM, being thorough, also gives the judge some cases that stand for the proposition that absurd results are to be avoided. It may seem funny to have to actually prove with cases that absurdity is not good, but there you are:

"Under New York law, the 'rules of contruction of contracts require, wherever possible, that an agreement should be given a "fair and reasonable interpretation"'. Farrell Lines, Inc. v. City of New York, 281 N.E. 2nd 162, 165 (N.Y. 1972). Thus, '[a] contract should not be interpreted to produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties'. In re Lipper Holdings, LLC, 766 N.Y.S.2d 561, 562 (N.Y. App. Div. 2003) (internal citations omitted); see also Leithton's Inc. v. Century Circuit, Inc., 463 N.Y.S.2d 790, 792 (N.Y. App. Div. 1983) (Fein, J., dissenting)('An unreasonable interpretation or an absurd result is to be avoided.'); Reape v. New York News, Inc., 504 N.Y.S.2d 469, 470 (N.Y. App. Div. 1986) ('[W]here a particular interpretation would lead to an absurd result, the courts can reject such a construction in favor of one which would better accord with the reasonable expectation of the parties.').

Think of the third parties in this picture, Your Honor, IBM is saying. It isn't fair to spring such a result on them. They never agreed to such terms. SCO's interpretation would damage them and produce an absurd and commercially unreasonable result.

When you are doing research on a legal case, you don't go at it without any road map, but you are also looking for things you never thought of before. If you come across a case that dovetails nicely and opens your eyes to another line of reasoning, you follow the thread. So a declaration like this one can come from either route: either someone sitting around brainstorming looked at the code's copyrights or the various license agreements for Dynix (or talked to the manager of the NUMA-Q Transition Engineering team, in this case Mr. Nelson), and found out that some of the code belonged to third parties and was only licensed for use in Dynix. That would be a Eureka moment. Or, someone doing the legal research noticed one of the above cases and said, hmm, I wonder if any of Dynix is licensed from third parties?

Whichever way it was, doing legal research is by far the most fun and creative part of the law, from my perspective. It's like playing jazz.

************************************

SNELL & WILMER LLP
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, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation

_________________________________

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

__________________________________

THE SCO GROUP, INC.,

Plaintiff/Counterclaim-Defendant,

-against-

INTERNATIONAL BUSINESS
MACHINES CORPORATION,

Defendant/Counterclaim-Plaintiff.

_____________________________

DECLARATION OF SCOTT NELSON IN SUPPORT
OF IBM'S MOTION FOR PARTIAL SUMMARY JUDGMENT
ON BREACH OF CONTRACT CLAIMS

Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells

_____________________________

I, Scott Nelson, declare as follows:

1. I am employed by International Business Machines Corporation ("IBM"). I am the manager of the NUMA-Q Transition Engineering team.

2. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon my personal knowledge.

3. I have worked with the Dynix operating system for more than two years. I supervise the team of developers who were and are responsible both for writing code for the Dynix operating system and for providing continued support to our customers on Dynix.

4. Each release of the Dynix operating system consists of millions of lines of source code. For example, the latest versions of the Dynix base operating system and the other layered products that constitute the Dynix operating system together contain approximately 30 million lines of source code.

5. Dynix contains code that was written by Sequent or IBM software engineers (or outside contractors retained by Sequent or IBM) for Dynix and code written by third parties and licensed to Sequent or IBM for inclusion in Dynix.

6. I declare under penalty of perjury that the foregoing is true and correct.

Executed: August 4, 2004.

Beaverton, Oregon

____[signature]____
Scott Nelson


  


Declaration of Scott Nelson - as text | 261 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here (n/t)
Authored by: Anni on Wednesday, November 03 2004 @ 04:12 AM EST
.

---
I am not a laywer, I hate acronyms, and I have been wrong several times before

[ Reply to This | # ]

Precedence for the obvious?
Authored by: Anni on Wednesday, November 03 2004 @ 04:23 AM EST
PJ: "It may seem funny to have to actually prove with cases that absurdity
is not good, but there you are"

It really seems funny. To what extent one has to go after these citations in US?
Would I have to show a preceding judgment for the Earth to be flat? Or do the
legal researches just include everything they can find (assuming it supports
their story)?

You know, I begin to understand the huge costs of legal resarch...

Anni


---
I am not a laywer, I hate acronyms, and I have been wrong several times before

[ Reply to This | # ]

OT - enforcing software patents through brain surgery
Authored by: Anonymous on Wednesday, November 03 2004 @ 04:28 AM EST
I remember PJ once said that software patnents cover what is essentially math.
I will take liberty to disagree with that, software patents are essentially
algorithms, which are simply instructions on how to do a particular task. They
can be "executed" by either computer or human - you could read source
code line by line and "execute it" in your head, writing down variable
values as you go, and effectively do what computer does.

As it is, I could bet my right arm that there are patents for what human brain
does and has been doing for thousands and millions of years - search algorithms,
tokenization, speech and image recognition, neural networks ...

So, to really enforce software patents, you would have to forbid people to
think and make conclusion in certain ways - after all, what if someone patented
"reaching a conclusion based on three premises and a hear-say" or some
similar nonsense?

But, we couldn't trust people not to secretly think in forbidden patterns, so
the ultimate solution would be brain surgery. Moreover, I am sure that there are
patents covering neural networks that cover natural activity of human neurons,
so better yet solution would be to rip out every neuron out of every human on
the planet, and replace their nervous system with licensed and patented device
that will get them to behave as patent holder permits.

Can you say Matrix ?

Boban.

[ Reply to This | # ]

OT Here Please
Authored by: Greebo on Wednesday, November 03 2004 @ 04:31 AM EST
Greebo

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Troll Playpen is Here
Authored by: Greebo on Wednesday, November 03 2004 @ 04:33 AM EST
Full of lovely toys....

Greebo

---
PJ has permission to use my posts for commercial use.

[ Reply to This | # ]

Declaration of Scott Nelson - as text
Authored by: blacklight on Wednesday, November 03 2004 @ 05:39 AM EST
"In short, the judge is being informed that this decision could have
far-reaching results that could upset the industry beyond what is reasonable or
just, even if the judge were inclined to find for SCO" PJ

IBM is giving the judge a useful checkpoint to work with: the judge simply
cannot rule in favor of SCOG without crashing into that checkpoint. And the
consequences deriving from crashing through and running that checkpoint have
ramifications that are simply unacceptable. A side effect of giving that
checkpoint is, of course, that the possibility of a ruling in SCOG's favor
becomes out of the question. Nice and thorough work: don't leave anything to
chance if you don't have to, don't make the judge guess if you don't have to,
and don't leave any loose ends dangling if you don't have to.

The work of analysis we are performing is very similar to that of a jury of well
educated, sharp people who can think for themselves, with the critical
difference that we can do our own research and thus introduce critically
relevant facts that are not in the pleadings. However, these facts can still be
introduced as the discovery period is by no means over, courtesy of SCOG. In
other words, the work that we are doing is almost a dry run for the the work
that a jury would have to do. So SCOG: do you still think you are going to get
lucky in front of a jury?

[ Reply to This | # ]

Did IBM miss a bet here?
Authored by: Jude on Wednesday, November 03 2004 @ 05:59 AM EST
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.

Could a better argument have been made here? If SCO claims the right to control all of this code, aren't
they claiming the right to control what the contributing third party does with it? And isn't that even more
absurd that claiming the right to control other uses by IBM?

[ Reply to This | # ]

Rejecting absurtidy - a dissenting opinion
Authored by: TZak on Wednesday, November 03 2004 @ 08:03 AM EST
From the article: see also Leithton's Inc. v. Century Circuit, Inc., 463 N.Y.S.2d 790, 792 (N.Y. App. Div. 1983) (Fein, J., dissenting)('An unreasonable interpretation or an absurd result is to be avoided.');

I am curious that IBM is quoting a dissenting opinion here. Does this mean that the appeals court majority was in favor of an absurd result? Couldn't find any info on the case in Google.

---
---------------------------------
show me the million lines of code

[ Reply to This | # ]

NEWS: SCO claim that third party licensors to Dynix have claim on System V!
Authored by: Anonymous on Wednesday, November 03 2004 @ 08:08 AM EST
SCO is claiming that licensing is transitive - that it has rights in Dynix as a whole, because part of Dynix was licensed from them (despite there being no specific text in the license agreement stating this).

Logically (Ok, clearly not SCO's strong point, but bear with me) those third parties (whose agreements also don't contain specific text concerning the transitive nature of such license agreements) have pretty much the same rights. So if SCO own Dynix (including the bits contributed by third parties), then those third parties also own Dynix, including System V. Mwahahahaaa!

You know, some people still claim that the GPL is complicated and awkward to understand.

Lurker #753

[ Reply to This | # ]

3d Party Joindure (sp?)
Authored by: Anonymous on Wednesday, November 03 2004 @ 10:21 AM EST
If TSG's claims affect the rights of parties beyond IBM, don't those parties
have a right (requirement?) to join this litigation? The key is whether the TSG
contract claim applies only to IBM's conduct, or whehter it is truly a viral
contract clause that would purport to affect those IBM licensors (now that would
be a truly revolutionary legal development). Anyway, if the contract claims
survive PSJ, don't those third parties have to be dragged into this bottomless
pit?

Sorry about the spelling

JG

[ Reply to This | # ]

SCOInfo is using GPL code ....
Authored by: Anonymous on Wednesday, November 03 2004 @ 10:58 AM EST
I know that this is off topic .....But I just queried www.scoinfo.com and it tells me that the server is running Apache 2.0.52 (Win32) mod_jdk2/2.0.4

Interesting eh?

[ Reply to This | # ]

OT - SCOX rallying this morning, but unlikely to maintain a foothold above $3.00/share...
Authored by: Groklaw Lurker on Wednesday, November 03 2004 @ 11:04 AM EST
Currently trading at $2.94/share on a volume of about 30,000 shares so far
today, most of the activity appears to be investors filling their shorted
quotas.

When the shorts are finally satisfied sometime later this year we should see
the per share value plummet precipitously - at least we have our fingers
crossed... :)

---
(GL) Groklaw Lurker
End the tyranny, abolish software patents.

[ Reply to This | # ]

Maybe IBM is not above a little smoke and mirrors
Authored by: Anonymous on Wednesday, November 03 2004 @ 11:15 AM EST
Something smells funny here.

Assume (big assumption) that someone really did 'own' SysV, and that it was still under legitimate non-disclosure contract. IBM and Sequent (as separate companies) have signed the same license to use the SysV source to make derivative products.

Now, if either IBM or Sequent makes changes, they are under the same license of non-disclosure of their derivatives, so if IBM licenses the changes made by Sequent, everything is still under the same non-disclosure rule. Sequent couldn't disclose the source before they licensed it to IBM, so IBM shouldn't gain any right to disclose it just by licensing it from a 'third party' (Sequent).

Where this gets really muddy is the question of exactly what is the derivative. As I see it, the answer to this question has changed over the lifetime of the Unix product.

There was a time when Unix was new, that anyone who licensed it and modified it to create a derivative work, really couldn't do so without a) using the protected source (which meant they had signed a non-disclosure license) and b) their modifications had no value apart from the protected Unix code. Any modification could reasonably be claimed to be a derivative of the protected (by copyright and by license) work. These are the "good 'ol days" SCO wants to remember.

Over time, as Unix code and concepts became standard industry knowledge (as AT&T intended, apparently), this became less and less clear. Unix, as IP, was depreciating in value for it's 'owner' and modifications and features added by licensees had uses completely apart from SysV (they were no longer derivatives).

All this to say: IBM's argument on this point (the presence of third-party code in SysV invalidates SCO's interpretation of the license) smells rotten to me. The ruling question is: what part (if any) of their (IBM & Sequent) work should be considered derivative of SysV and therefore governed by the license they (both) signed. On that point, I think IBM has a convincing argument that their code (and Sequent's) is not covered by SCO's license.

[ Reply to This | # ]

Absurd results
Authored by: Anonymous on Wednesday, November 03 2004 @ 11:17 AM EST
'[W]here a particular interpretation would lead to an absurd result, the courts
can reject such a construction in favor of one which would better accord with
the reasonable expectation of the parties.').


As far as I see it interpertations of Patent law leads to some pretty absurd
results, and so do interpertations of copyright law. So why make an exception
here?

[ Reply to This | # ]

Third Party Code
Authored by: rsteinmetz70112 on Wednesday, November 03 2004 @ 11:51 AM EST
IBM has been aware from the beginning that there was third party code in their
operating systems. Remember back when SCO was asking for all AIX source IBM
stated that they had to obtain releases from third parties and that was one of
the reasons for the protective order. I believe it was mentioned that CA
developed some of the SMP code.

I notice that this declaration does not mention whose code it is.

---
Rsteinmetz

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

[ Reply to This | # ]

3rd party code
Authored by: mobrien_12 on Wednesday, November 03 2004 @ 01:08 PM EST
I wonder if any of this 3rd party code was put in Linux by IBM.

[ Reply to This | # ]

  • 3rd party code - Authored by: Anonymous on Wednesday, November 03 2004 @ 04:42 PM EST
Darl's "Cooties" theory of IP comtamination
Authored by: Anonymous on Wednesday, November 03 2004 @ 01:17 PM EST
Darl's theory if IP contamination is like Cooties,
it can be passed by touching.

But what IP contamination "Cooties" has
Darl's ATT code picked up from other parties?

Note to other companies looking to make a fortune,
Darl has effectively declared the SCO may be ripe
for harvesting under SCO's own Cooties theory.

[ Reply to This | # ]

Declaration of Scott Nelson - as text
Authored by: Anonymous on Wednesday, November 03 2004 @ 01:45 PM EST
If I remember correctly, IBM contributed the NUMA and JFS code into System V
Unix.

If we apply SCO's derivative theory transitively, this means that IBM also has
the right to control every derivative version of System V Unix since it contains
IBM code.

[ Reply to This | # ]

  • JFS - Authored by: rsteinmetz70112 on Wednesday, November 03 2004 @ 02:27 PM EST
    • JFS - Authored by: Anonymous on Wednesday, November 03 2004 @ 03:09 PM EST
Another illustration of the absurdity
Authored by: Jude on Wednesday, November 03 2004 @ 06:54 PM EST
Suppose that some AIX feature had been originally developed by people who never
had any contact whatsoever with AIX or the oroginal Unix code. This isolated
team writes the complete package, and then sends it via a purely one-way channel
to various other areas in IBM, including the AIX team. The feature developers
never talk or have any other two-way communication with the OS teams that get
the code. Furthermore, the teams that get the code never talk to each other.

According to SCO's theory of derived works, all of the teams that received this
code would immediately become contaminated by SCO IP at the instant the AIX team
received the code, despite the fact that no information about the new feature
ever propagated away from the AIX team.

The absurdity is that contract language that was intended to protect the
confidentiality of AT&T's code (and maybe methods and concepts) is being
applied to a situation in which no information ever leaves the team that has
AT&T's code. SCO claims that someone who has never had any contact with the
protected confidential information can nonetheless be guilty of violating the
confidentiality of that information.

[ Reply to This | # ]

chess, and you guys are missing the point
Authored by: jig on Wednesday, November 03 2004 @ 09:57 PM EST
first: chess does have judges. they are usually called tournament directors and
they are called in when someone makes what the other guy thinks is an illegal
move OR when someone isn't abiding by some other understood rule (like being
quiet). an interesting fact: if one guy makes an illegal move and the other guy
doesn't catch it within a certain number of moves, the illegal move stands.

next, the thing you guys seem to be missing when you are arguing that the
"absurd" interpretation of the contract means that everyone owns
everyone else code etc etc.

first, that isn't the argument. no other entity has this same contract, and ibm
can't flip the terms of the contract around to assert ownership of sysv, same as
in any contract (no switchero of parties wilinilli). contracts CAN cover the
absurd and CAN make what seems to be absurd stipulations on signing parties, as
long as they are clearly laid out and understood. what the judge above is
arguing is that 'interpretation' of the contract shouldn't be absurd.
interpretation is only needed when the contract isn't clear, as in this case
where even att has admitted that the writing was unclear enough to warrant the
expositions in $echo.

what ibm is arguing is that it AND at&t have never acted as if they have
this understanding, and that it would be 'absurd' to think that att, ibm and all
third parties would have acted as they have over the years if it WAS understood
to be such.

so the absurd part isn't (entirely) the effects of the contract over third
parties, it is the actions of all the parties of the contracts over the years in
the face of this interpretation. it s a fine point, but it is there.

[ Reply to This | # ]

I don't see that this proves much
Authored by: Anonymous on Wednesday, November 03 2004 @ 10:25 PM EST
Imagine for a minute that IBM really had signed one of those diabolical
"all your code are belong to us" contracts with SCO (which I do not
for a minute believe that it actually did). Nevertheless for the sake of a
little thought experiment here, let us just suppose that with full knowledge and
intent they had done this. If IBM then subsequently included third party code in
AIX what would the situation be? As IBM clearly has no right to give away rights
to someone elses code without agreement, they would have violated this contract.
So what? That is not a contradiction or anything - this is a possible state. It
certainly wouldn't mean that the original contract would be instantly
invalidated or rewritten by such action.

At best I see this as evidence that IBM has never interpreted the contract in
that way since they saw no problem with including third party code in AIX
without obtaining permission to give away rights to it to SCO. It might also be
part of evidence that SCO also never interpreted the contract that way since it
saw no problem with IBM doing this at the time. However I really don't see that
it proves much else.

[ Reply to This | # ]

They're trying *really* hard
Authored by: inode_buddha on Wednesday, November 03 2004 @ 11:01 PM EST
to make this a contract case. Bummer that copyrights are involved. :)

---
"When we speak of free software, we are referring to freedom, not price." --
Richard M. Stallman

[ Reply to This | # ]

My Observation..
Authored by: Anonymous on Thursday, November 04 2004 @ 09:26 AM EST
As a fly on the wall, I'd like to make an observation if I could. This has
probably been mentioned before but I think it is relevant to this topic.

I hear many journalists, or at least I used to anyhow, that there are people
afraid of GPL software being "viral" in regard to fears that
proprietary code becomming GPL if it comes in contact with GPL code. (now we all
know this is false), however, isn't this SCO case more along the lines of viral
software (or contracts)?

The irony is amazing.

[ Reply to This | # ]

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