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Declaration of Geoffrey D. Green
Saturday, October 30 2004 @ 11:20 PM EDT

Here is the Declaration of Geoffrey D. Green, transcribed for us by the indefatigable thpr. It is one of the group of declarations IBM submitted in support of its motion for partial summary judgment on breach of contract claims. Mr. Green was an AT&T employee, an attorney. He did not participate in the negotiations for any of the IBM license agreements, but says it is possible he offered legal services to AT&T regarding the agreements with IBM or Sequent. He says he has no specific recollection but even if he did, it would be covered by the attorney-client privilege. He does confirm, like all the other IBM declarants, that "AT&T did not intend to assert ownership or control over modifications and derivative works prepared by licensees, except to the extent of the original UNIX System V source code included in such modifications and derivative works."

Keep in mind that AT&T is supposed to be SCO's predecessor in interest, not IBM's friend, in this battle. Yet here is an AT&T attorney testifying that SCO's interpretation of the license agreements is incorrect. To me, that trumps the one declarant SCO found, a marketing guy who wasn't there, from all we can see, for the entire negotiations process. When it comes to contracts, who would understand what they mean, and what AT&T wanted them to mean, better than an AT&T attorney? Truly, if anyone was going to stand up and support SCO's version, this would have been the guy. And he doesn't.

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

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]

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 GEOFFREY D. GREEN

I, Geoffrey D. Green, declare as follows:

1. From approximately 1956 through 1996, I was employed by various AT&T-related companies, including AT&T Technologies, Inc. ("AT&T").

2. This declaration is submitted in connection with the lawsuit entitled The SCO Group, Inc. V. International Business Machines Corporation, Civil Action 2:03CV-0294 DAK (D. Utah 2003), and is based upon personal knowledge.

3. During the period from 1983 to 1986, while I was employed at AT&T, the company entered into a number of license agreements relating to UNIX System V software and related materials. I was involved, to varying degrees, with some of these agreements.

4. It was not my job, as a general matter, to negotiate our license agreements or to participate in discussions with our licensees. To the best of my recollection, I did not negotiate any of our license agreements with International Business Machines Corporation ("IBM") or Sequent Computer Systems, Inc. ("Sequent").

5. It is possible that I offered legal services to representatives of AT&T concerning our agreements with IBM or Sequent. However, I do not have any specific recollection of doing any work regarding these agreements, and even if I did, I believe that any advice I might have given regarding any UNIX System V agreement would be protected from disclosure by the attorney-client privilege and I would be unwilling to disclose it absent AT&T's consent.

6. Without disclosing any legal advice that I may have rendered while employed at AT&T (or any requests I may have received for legal advice), I can say that, as I understood AT&T's UNIX System V licensing agreements, AT&T did not intend to assert ownership or control over modifications and derivative works prepared by licensees, except to the extent of the original UNIX System V source code included in such modifications and derivative works. Accordingly, a licensee was free to do with as it wished (e.g., use, copy, distribute or disclose) code developed by or for the licensee in its modifications and derivative works, provided that the licensee did not use, copy, distribute or disclose any portions of the original UNIX System V source code provided by AT&T (except as otherwise permitted by the license agreements).

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

Executed: June 17, 2004.

Rocky Hill, New Jersey

____[signature]____
Geoffrey D. Green


  


Declaration of Geoffrey D. Green | 68 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT Here Please
Authored by: Anonymous on Sunday, October 31 2004 @ 12:00 AM EDT
If there is any news on a Sunday...

[ Reply to This | # ]

Chatlos' declaration was make weight
Authored by: Latesigner on Sunday, October 31 2004 @ 12:06 AM EDT
"6. Without disclosing any legal advice that I may have rendered while
employed at AT&T (or any requests I may have received for legal advice), I
can say that, as I understood AT&T's UNIX System V licensing agreements,
AT&T did not intend to assert ownership or control over modifications and
derivative works prepared by licensees, except to the extent of the original
UNIX System V source code included in such modifications and derivative works.
Accordingly, a licensee was free to do with as it wished (e.g., use, copy,
distribute or disclose) code developed by or for the licensee in its
modifications and derivative works, provided that the licensee did not use,
copy, distribute or disclose any portions of the original UNIX System V source
code provided by AT&T (except as otherwise permitted by the license
agreements)."

So no one was talking to Ed Chatlos who appears to have been negotiating in a
paralell reality.

[ Reply to This | # ]

Declaration of Geoffrey D. Green
Authored by: Groklaw Lurker on Sunday, October 31 2004 @ 12:43 AM EDT
"...6. Without disclosing any legal advice that I may have rendered while
employed at AT&T (or any requests I may have received for legal advice), I
can say that, as I understood AT&T's UNIX System V licensing agreements,
AT&T did not intend to assert ownership or control over modifications and
derivative works prepared by licensees, except to the extent of the original
UNIX System V source code included in such modifications and derivative
works..."

I would have thought that SCO should have sought, by now, some more or less
painless way out of this perilous predicament - given that even the former
owners of the code and copyrights in question do not believe they owned what SCO
is claiming it now owns.

I can only conclude that SCO does not now have, and probably has never had, any
intention of seeking a negotiated settlement that would leave some vestige of
their company intact sufficiently to have some small chance of surviving. It
appears to me that SCO is engaged in some sort of suicide charge as they were
the famed 'Light Brigade'.

Hmmm... Perhaps depicting SCO as a soon to be 'beached Whale' would be more
appropriate - except that there are usually folks eager to assist a beached
Whale while the only guy still eager to assist SCO is their bankruptcy attorney.

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

[ Reply to This | # ]

Reason for Declaration of Geoffrey D. Green
Authored by: rand on Sunday, October 31 2004 @ 12:46 AM EDT
It appears at first that this declaration adds little weight to IBM's case, but
it looks like IBM is methodically covering all the possibilities, obtaining
statements from everyone who could have had any responsibility for their UNIX
licenses, even as here, where Green may not have been directly involved.

It is a pleasure to observe a good legal team move steadliy forward like this.
Kinda like watching a cut-stone wall going up.

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL
and so forth and so on)

[ Reply to This | # ]

I'm Confused
Authored by: bobn on Sunday, October 31 2004 @ 01:30 AM EST
To me, that trumps the one declarant SCO found, a marketing guy who wasn't there, from all we can see, for the entire negotiations process. When it comes to contracts, who would understand what they mean, and what AT&T wanted them to mean, better than an AT&T attorney?

Well, how about another AT&T attorney?

From Martin Pfeffer's Declaration at http://www.groklaw.net/article.php?story=20040914220209472

4. In the 1980's, I was General Attorney for AT&T and provided legal consulting for AT&T's UNIX System Laboratories, Inc. ("USL"). Together with Burt Levine (another attorney employed in AT&T's legal department), I participated in, supervised, and approved the legal department's drafting of the terms of the written license agreements (and any modifications thereto), whereby AT&T and USL licensed UNIX computer operating system source code and related proprietary materials. I had the primary responsibility for such matters.

10. ... AT&T intended to protect, and through its standard license agreements expressly protected, its UNIX business by preventing anyone from using AT&T's proprietary material in UNIX including ....disclosing methods or concepts from UNIX,

PJ notes in the earlier article linked above that stuff already made public through other routes need niot be held in confedence. But the Pfeffer declaration remains another discordant note, to me anyhow. Is it because he didn't deal with IBM in particular that he doesn';t count? what am I missing?

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

Why is this even here?
Authored by: bobn on Sunday, October 31 2004 @ 02:30 AM EST
4. It was not my job, as a general matter, to negotiate our license agreements or to participate in discussions with our licensees. To the best of my recollection, I did not negotiate any of our license agreements with International Business Machines Corporation ("IBM") or Sequent Computer Systems, Inc. ("Sequent").

5. It is possible that I offered legal services to representatives of AT&T concerning our agreements with IBM or Sequent. However, I do not have any specific recollection of doing any work regarding these agreements,

This guy had nothing to do with anything. Why did IBM waste their breath?

---
IRC: irc://irc.fdfnet.net/groklaw
the groklaw channels in IRC are not affiliated with, and not endorsed by, either GrokLaw.net or PJ.

[ Reply to This | # ]

Permission to testify
Authored by: Anonymous on Sunday, October 31 2004 @ 08:22 AM EST
Can AT&T give permission to disclose protected information? Do any of the
successors of interest have any say in the matter?

Presuming that AT&T can't be prevented from giving permission to testify,
are they likely to do so?

If a company has a division and sells that division then do they have a duty to
not disclose information that the buyer does not want disclosed?

[ Reply to This | # ]

Contract Interpretation
Authored by: rand on Sunday, October 31 2004 @ 12:40 PM EST
Just found a new resource, extremly clear and easy to understand.. It deals mainly with government contracting, but is based on the laws which apply broadly to contracts in general, with specific Federal Court citations:

DOJ Title 4 Resource Manual, in particular, the chapters on Principles of Contract Interpretation

Contract interpretation begins with the plain language of the contract. Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991); accord Hol-Gar Mfg. Corp. v. United States, 169 Ct. Cl. 384, 390 (1965). A court should first employ a "plain meaning" analysis in any contract dispute. Aleman Food Services, Inc. v. United States, 994 F.2d 819, 822 (Fed. Cir. 1993).

In construing the terms of a contract, the parties' intent must be gathered from the instrument as a whole in an attempt to glean the meaning of terms within the contract's intended context. Kenneth Reed Constr. Corp. v. United States, 475 F.2d 583, 586 (Ct. Cl. 1973); Tilley Constructors v. United States, 15 Cl. Ct. 559, 562 (1988). The intention of the parties to a contract controls its interpretation. Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 551 (Ct. Cl. 1971). Contract interpretation requires examination first of the four corners of the written instrument to determine the intent of the parties. Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972 (Ct. Cl. 1965). An interpretation will be rejected if it leaves portions of the contract language useless, inexplicable, inoperative, meaningless, or superfluous. Ball State Univ. v. United States, 488 F.2d 1014 (Ct. Cl. 1973); Blake Constr. Co. Inc. v. United States, 987 F.2d 743, 746-47 (Fed. Cir. 1993).

Ambiguity in a contract may be either latent or patent. If a contract is reasonably, but not obviously, susceptible of more than one interpretation, it is latently ambiguous. Hills Materials Co. v. Rice, 982 F.2d 514, 516 (Fed. Cir. 1992). A latent ambiguity will be construed against the drafter if the nondrafter's interpretation is reasonable. Hills Materials Co. 982 F.2d at 516, citing Fort Vancouver Plywood Co. v. United States, 860 F.2d 409, 414 (Fed. Cir. 1988). Whether an interpretation is reasonable will be determined by ordinary principles of contract construction. A patent ambiguity is an obvious error, or gross discrepancy, or an inadvertent, but glaring gap. H.B. Zachry Co. v. United States, 28 Fed. Cl. 77, 81 (1993), aff'd 17 F.3d 1443 (Fed. Cir. 1994), citing Interstate General Government Contractors v. Stone, 980 F.2d 1433, 1435 (Fed. Cir. 1992). Where a patent ambiguity exists, a contractor is under a duty to attempt to resolve the ambiguity prior to bidding if the contractor subsequently wishes to rely upon the provision. E.g., S.O.G. of Arkansas v. United States, 546 F.2d 367, 369 (Ct. Cl. 1976). In such circumstances, the obviousness of the discrepancy is critical, not the actual knowledge of the contractor. Chris Berg, Inc. v. United States, 455 F.2d 1037, 1045 (Ct. Cl. 1972). Failure by a bidder to seek a clarification of a patent ambiguity prior to submitting its bid precludes that bidder from later recovering for work that it reasonably, but wrongly, believed was not required by the contract. Tilley Constructors & Engineers, Inc. v. United States, supra.

---
The wise man is not embarrassed or angered by lies, only disappointed. (IANAL and so forth and so on)

[ Reply to This | # ]

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