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More Filings in SCO v. IBM |
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Thursday, December 02 2004 @ 11:11 PM EST
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There are more documents now on Pacer: - an Order one granting SCO leave to file an overlength memorandum;
- an Order granting IBM the same right to file an overlength Opposition to SCO's Motion for Leave to File a Third Amended Complaint;
- a Declaration by Jeremy Evans, on behalf of SCO's opposition to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims, which is essentially a list of exhibits and cases. The most interesting is on page 4, the list of sealed exhibits, which includes a 1997 email from Ron Smith to Terry McKenna and a January 2002 email from Bill Sandve to Kim Tran; and
- a second Evans Declaration, partially sealed, with two sets of exhibits attached, numbers 349-1 and 350-1.
The exhibits list includes things we haven't seen yet, even though they are not listed as being sealed, such as some letters from O. Wilson from 1987 and 1990, one of them to IBM and another to Sequent, and portions of a 1992 deposition of Mitzi Bond, as well as a November 4, 2004 declaration by Ms. Bond. You can see why they would only use portions of her deposition, when you read the 1993 Amicus Brief by Defendants the Regents of the University of California Re Plaintiff's Motion for Preliminary Injunction in the BSDI case, which refers to Mitzi Bond's deposition, and which you can read in full on Dennis Ritchie's website. I think you will be able to guess what part SCO would like in her deposition, but the problem SCO has is, this is all talking about the Educational License, which did refer to methods and concepts, not the commercial kind that IBM has:
In other words, AT&T agreed not to claim ownership in any
derivative works developed by the University; however, the
University agreed that any derivative works which "contains" AT&T
code (i.e., "Licensed Software") would be treated as if it were AT&T
code and distributed only to AT&T licensees. See Frasure Depo., at
154:15-155:13.
Shortly thereafter, AT&T further memorialized the parties'
understanding regarding ownership and distribution of Unix
enhancements by drafting the Educational Software Agreement No.
E-SOFT-00089 (SOFT-00089). Wilson Depo.,at 139:10 -140:1 (the
SOFT-00089 agreement was a "clearer representation of our
intent")[fn11]. This supplemental agreement executed in November
1985 expressly provides that AT&T claims no ownership interest in
the University's software as long as it does not contain AT&T's
source code or disclose its methods and concepts.[fn12] Consistent
with the May 15, 1985 letter-amendment (Exh. A to Karels Decl.)
SOFT00089 provides in its "Grant of Rights:"
Para. 2.01 (a) ...[the] 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 [AT&T] SOFTWARE
PRODUCT subject to this Agreement is treated hereunder the same
as such [AT&T] 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 [AT&T] SOFTWARE PRODUCT.* (Emphasis added.)
Para. 2.01(b)(ii) ...results enhancements and modifications (all to the
extent that they do not include any portion of [AT&T] SOFTWARE
PRODUCTS) are made available to anyone (including AT&T-IS and its
corporate affiliates) without restriction on use, copying or further
distribution.... Exhibit G, attached to the Shapreau Decl.
Thus, again, AT&T agreed in writing that the University owned all
derivative code and that such derivative enhancements and
modifications should be made "available to anyone" to the extent
"they do not include" AT&T code.
[fn11] The SOFT-00089 license agreement was intended to
"clarify" the prior intent of the parties.Wilson Depo., at 139:10-
140:1. AT&T's Director of Licensing, Otis Wilson, testified that the
language used prior to that contained in the SOFT-00089 license
agreement was "somewhat confusing to some people in that they
thought we were trying to assert ownership to anything they
created, even though it contained nothing of ours. So this is to
clarify that what's yours is yours and what's ours is ours"(emphasis
added). Wilson Depo., at 75:24-76:4. USL's Mitzi Bond admitted that
she understood 2.01(b)ii) meant that "enhancements and
modifications made by the licensee were to be made available to
anyone so long as they did not include any portion of the software
products licensed under the agreement" emphasis added). Bond Depo.,
at 137:19-138:19. However, Ms. Bond also has espoused a mental
"contamination" theory by which any university student exposed to
AT&T code would be beholden to AT&T for any software product
he/she might subsequently develop. Bond Depo,at 220:2-13, 237:24-
238:8.
[fn12] USL's witness, Mitzi Bond, testified that the SOFT-00089
superseded AT&T's earlier agreements.Bond Depo., at 132:10-134:2.
Ms. Bond testified that a licensee's use of 32V on a CPU licensed
under SOFT-00089, would be subject to the terms and conditions of
SOFT-00089. Bond Depo., at 39:7-43:5 referring to Exhibit J,
attached to the Shapreau Decl..
[fn13] It appears that AT&T similarly tried to restrict other
licensees' rights with respect to code they derived from AT&T's
UNIX, because AT&T sent out a clarification to all its licensees in
August, 1985 which stated: "Section 2.01. The last sentence was
added to assure licensees that AT&T will claim ownership in the
software that they developed -- only the portion of the software
developed by AT&T." Exhibit H, attached to the Shapreau Decl. The
2.01 referred to in Exhibit H is the same 2.01 contained in the SOFT-
00089 agreement. Frasure Depo., at 1 08:21 -1 1 0; 1 1 2:7-21. USL's
Mitzi Bond participated in the preparation of Exhibit H. She testified
that the clarification to 2.01 "indicates that all we did was add a
sentence to the existing one so that licensees would clearly
understand that we were not claiming the ownership in code that
they developed that didn't contain ours" (emphasis added). Bond
Depo., at 189:14-191:21.
Finally, AT&T acknowledged the University's ownership rights in the
University's derivative BSD code in June 1986, when AT&T signed
license agreements with the University for 4.2BSD and 4.3BSD
(which originated with 32V). Towers Decl., at Para. 3 and Exhibit A,
attached. The agreement for 4.2/4.3BSD states in relevant part:
WHEREAS, *The Regents of the University of California (the
University) is the proprietor and owner of enhancements and
additions to 32V,* which together with parts of 32V comprise
computer programs and documentation entitled "Fourth Berkeley
Software Distribution ("4BSD)....(Emphasis added.)
* * *
Title: AT&T agrees that 4.2 and 4.3 contain proprietary software
belonging to the University. *AT&T shall have no right, title or
interest in or to such proprietary software* except as expressly set
forth in this Agreement. (Emphasis added.) Exhibit A, attached to the
Towers Decl.
AT&T's admission that the University 'owned'' the enhancements and
additions to 32V included the University's right to distribute its
software to the public, as evidenced in the testimony of AT&T's
former Director of Licensing, Otis Wilson:
Q: And you weren't trying to assert restrictions on the part [of the
software] that did not belong to AT&T?
A: That's correct. In other words, if you follow that through, it's
yours. I have no jurisdiction whatsoever. Wilson Depo., at 77:19-23.
Q:... 'when the university owns it,' do you mean that they are free and
clear of any restrictions by AT&T?
A: Right... Wilson Depo., at 122:5-10.
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Authored by: NastyGuns on Friday, December 03 2004 @ 12:20 AM EST |
Please put OT comments and links here in clickable format.
--- NastyGuns,
"If I'm not here, I've gone out to find myself. If I return before I get back,
please keep me here." Unknown. [ Reply to This | # ]
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- Enjoy! - Authored by: marbux on Friday, December 03 2004 @ 03:10 AM EST
- Enjoy! - Authored by: Jeff on Friday, December 03 2004 @ 11:07 AM EST
- Enjoy! - Authored by: marbux on Friday, December 03 2004 @ 04:19 PM EST
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Authored by: Anonymous on Friday, December 03 2004 @ 12:28 AM EST |
Forgive the repost (I have already posted this in the relevant stories, but was
late so most people may have missed it).
Anyway...
In SCO's
recent filings they accuse IBM of "hacking" into SCO's web site in order to
obtain evidence of SCO's continued distribution of
Linux.
So...
IBM did not need to "hack" (that is SCO's
characterization of IBM accessing a publicly available Internet site -- not
mine) to know that SCO is distributing Linux... SCO told everybody that they
are doing so, and intended to continue to do so.
For example (I believe
there are also similar quotations in other articles by Chris Sontag and possibly
Darl McBride).
Computer Weekly -
BLAKE STOWELL - 29 September 2003
SCO has not sold the SCO Linux
software in question since 12
May, but the company continues to
distribute it via the internet to
honour existing support contracts, said
SCO spokesman Blake
Stowell.
Stowell disputed the idea
that SCO could no longer distribute
Linux. "We're the copyright holder
for the core Unix operating
system. If we want to charge someone a
licensing fee for using
our copyrighted software that's gone into Linux,
then we have that
prerogative," he said.
"If we want
to continue to distribute Linux to our existing
customers, we can do that
because we own the copyrights on
that Unix
software."
Quatermass
IANAL IMHO etc[ Reply to This | # ]
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Authored by: jbb on Friday, December 03 2004 @ 12:33 AM EST |
So they are easy to find.
---
SCO cannot violate the covenants that led to and underlie Linux without
forfeiting the benefits those covenants confer.[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 03 2004 @ 01:22 AM EST |
Did the Motion to intervene and unseal the other documents come too late for the
parties to hesitate to produce more sealed documents? Or, do they simply not
care at this stage?[ Reply to This | # ]
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Authored by: paul_cooke on Friday, December 03 2004 @ 01:58 AM EST |
So they want to change their complaint yet again???
will there be anything left from the original complaint???
When will the judge smack them down for having fished with
successive complaints until one stuck??? They must be
desperate to change the case before IBM get their partial
PSJ awarded...
Should the judge throw the whole charade out and tell them
to go file a whole new case somewhere else???
Well who knows... I'm mightily sick of the whole
charade... and those fudsters will still be making noises
outside court that bear no relation to the actual charges
at all...
---
Use Linux - Computer power for the people: Down with cybercrud...[ Reply to This | # ]
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Authored by: AntiFUD on Friday, December 03 2004 @ 02:14 AM EST |
It appears from the vast quantity of ancient documents, that have been referred
to herein, that SCOG were, or perhaps should I say, are (a) fully aware of the
contents of not only the court filings but also the depositions related in the
USL v. BSDI case and have selectively quoted therefrom and (b) counting on the
content of the USL & UCal Settlement Agreement remaining secret.
As far as I can ascertain none of their references to the aforementioned
ancient case documents, however cleverly parsed, pruned or perverted, can be
used to prove any of their claimed proprietary ownership, through the old
AT&T licences, to ancient UNIX and/or its source code because of its
so-called confidential nature, for two reasons:
Firstly, because, as PJ points out all this ancient stuff relates to
'educational' licences, regardless of the fact that IBM was a fully paid up
holder of a Commercial licence, or the fact that Novell overruled SCOG's
attempted termination thereof, and
Secondly, SCOG still have not shown any code that (a) they own or to which they
hold valid copyrights, and (b) has been misappropriated by IBM either in AIX
or in IBM's copyrighted code contributed to GNU/Linux, especially in light of
the continuing (successors and assigns) release by USL made in the Settlement
Agreement.
Given the foregoing as correct analysis, remind me again, what was the basis, or
reason(s) of SCOG's purported 'termination' of the AT&T-IBM Software
Agreement?
Can SCOG, in good conscience, continue to prosecute this 'contract' suit against
IBM, for IBM's continued (after SCOG purported to terminate SOFT-000015) sale of
AIX or (past) contributions of AIX code (if any) to Linux? It appears now that
they had no basis for the termination or for any of the other allegations that
they have made against IBM.
Thus, one can only reach one conclusion: SCOG acted with FRAUDULENT INTENT and
SCOG's lawyers have perpetrated a Fraud on the Court by continuing to prosecute
this case on SCOG's behalf, especially if they knew or were aware of the content
of the Settlement Agreement.
I guess it is lucky for SCOG and their lawyers that I am not the judge in this
case - well I was going to say what I would do with them but PJ might not like
me too much if I put it in print on her Blog.!!!
I am sure you will let me know if you disagree or diverge, in any small way,
from my analysis, reasonable reasoning, and/or raving rant.
---
IANAL - But IAAAMotFSF - Free to Fight FUD
[ Reply to This | # ]
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Authored by: Anonymous on Friday, December 03 2004 @ 09:44 AM EST |
SCO is looking for something...
And they want a judge or jury to support them on it!
If the judge or jury supports their methods and concepts stuff then they will
use that as a license to OWN UNIX... including trying to go to court vs BSD
again. There was no court ruling only a settlement on the USL vs BSDI case...
SCO might be looking out longer than the IBM case and seeing this as a place
that they want to visit next.
AND getting a judge or jury to support their methods and concepts arguement
would give them license to attack everyone AND also use this to attack open
source all over the map!
[ Reply to This | # ]
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Authored by: Latesigner on Friday, December 03 2004 @ 10:24 AM EST |
So here we have a declaration that is not relevant to the IBM suit and SCO is
trying to use it as evidence?
Just how much does it take to really annoy a judge?[ Reply to This | # ]
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