|
|
| Declaration of Edward Normand - as text |
 |
|
Saturday, December 04 2004 @ 04:55 AM EST
|
Here's the Declaration of Edward Normand [PDF], as text. Thanks go to fudisbad for transcribing it for us. Mr. Normand offers his Declaration in support of SCO's 56(f) motion [PDF; text], and Mr. Normand's job is to present to the court the discovery that SCO feels it still needs to do and why it hasn't so far been able to do it. We've heard that song before, of course, and so has the judge, but he comes up with new reasons why SCO, once again, needs a delay before the court decides IBM's motion for partial summary judgment on the contract claims.
For one thing, SCO would like to depose the small army of declarants who supported IBM's position on the interpretation of the license, hoping to get some more names of further witnesses to testify on the matter. They have certain facts, they say, they'd like to use to confront IBM's declarants. SCO realizes they already deposed Otis Wilson and David Frasure, but they didn't realize they had the earlier BSDi depositions of Wilson and Frasure until after the deposition, and they'd like to have at it again. It seems IBM is no longer answering SCO's love letters demanding that they produce everything and then the kitchen sink, so they'd like the court to order the kitchen sink turned over, so SCO will know all declarations and affidavits IBM has. They suspect IBM is only revealing the ones that help them. Heavens. I'm sure *that* never happens in litigation. SCO reveals that Novell gave them some documents from the BSDi litigation and offered to let SCO inspect documents related to license agreements on November 19. SCO thinks it can cook up some issues from that as well. As for Novell's waiver of SCO's IP rights, SCO has submitted some declarations, like Ed Chatlos's, which SCO characterizes as stating that the parties never intended Novell to have such rights. They continue to refer to him in the category of "chief negotiators," despite Mr. Chatlos not being involved in the entire negotiation process. SCO would like to take further depositions of other parties to the negotiations. Finally, SCO would like to depose the folks at IBM who got all the evidence of SCO's continuing distribution of Linux and try to prove that IBM hacked SCO's password-protected website. Good luck with that. They think that is the only evidence IBM has of continued distribution. Translation by PJ: they know they are likely to lose as things now stand, and they need to beat the bushes to find better declarations than what they have submitted so far, to which I would say a hearty Amen. Whether the court enjoys eternal litigation as much as SCO seems to, well, we'll just have to wait and see. Meanwhile, this motion will inevitably lead to some delay, if only because of when it was filed. Delay is SCO's middle name in this litigation, and here they go again.
*********************
Brent O. Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address, phone, fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
Sean Eskovitz (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER
[address, phone, fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address, phone, fax]
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
|
THE SCO GROUP,
Plaintiff,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Defendant.
|
Case No. 2:03CV0294DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
DECLARATION OF EDWARD NORMAND
|
1. I
am a member of the law firm of Boies, Schiller & Flexner LLP,
counsel for Plaintiff The SCO Group, Inc. ("SCO") in the
above-captioned matter. Unless otherwise indicated, I make this
declaration based upon personal knowledge.
2. I
submit this Declaration in support of SCO's Memorandum in Opposition
to Defendant/Counterclaim-Plaintiff IBM's Motion for Summary
Judgment on SCO's Contract Claims, dated November 30, 2004.
3. I
explain below that SCO has been unable to make full discovery in
this matter and why IBM's motion is therefore premature under
Federal Rule of Civil Procedure 56(f). I explain the discovery that
SCO reasonably believes will further enable it to justify its
opposition to IBM's Motion for Summary Judgment.
4. SCO
has previously explained in detail for this Court and for the
Magistrate Court why SCO has been unable to date to take (among
substantial other discovery) the discovery I address below. In an
effort to avoid redundancy, I adopt those prior submissions and
arguments by reference, specifically including the memoranda,
affidavits, and argument concerning SCO's opposition to IBM's motion
for summary judgment on its Tenth Counterclaim, SCO's 56(f) motion
concerning the same, and SCO's motion to enforce the scheduling
order, which were all submitted to this Court, as well as the
submissions concerning SCO's memorandum regarding discovery and
renewed motion to compel, the discovery motions currently pending
before Magistrate Judge Wells.
5. SCO
has deposed only some of the witnesses on whose declarations IBM
relies to argue its narrow interpretation of the license software
agreements is correct as a matter of law. The declarations of IBM's
key declarants - including Otis Wilson, David Frasure, Geoff Green,
Ira Kisterberg, and David Rodgers - have been contradicted by their
own testimony in this case as well as by the declarations SCO has
provided from Martin Pfeffer, Burt Levine, Mitzi Bond, and Evelyn
Davis. In addition, the sworn deposition testimony of Mr. Wilson and
Mr. Rodgers in previous litigation flatly contradicts their
declarations for IBM in this case. Based on these inconsistencies
and contradictions in IBM's evidence, SCO reasonably believes that
it will obtain from remaining depositions additional evidence to
oppose IBM's motion.
6. SCO
also reasonably expects to obtain from remaining depositions the
names of other witnesses, particularly members of the UNIX
intellectual property licensing group, who can testify to their
understanding of the scope of the use and disclosure restrictions in
the software license agreements and the basis for their
understanding.
7. SCO has intended to and believes
it is entitled to confront IBM's declarants with the facts
discovered from AIX programmers who, because they had access to the
UNIX source code, were in a position to implement and potentially
circumvent the restrictions on licensees in the software agreements
at issue.
8. In
March and April 2004, IBM produced approximately 670,000 pages of
documents to SCO. IBM thereafter noticed the depositions of Otis
Wilson and David Frasure. Only after the depositions had been taken
(over SCO's objection to their premature timing) did SCO discover
that IBM's production of documents included the deposition
transcripts of Mr. Wilson's and Mr. Frasure's flatly contradictory
sworn testimony in prior litigation. SCO reasonably believes that
the more efficient and fair way to have proceeded in the first
instance would have been to permit SCO to receive and process the
information relevant to the testimony of those witnesses before
their depositions.
9. SCO
has learned that IBM obtained a declaration from Martin Pfeffer
which IBM did not disclose with its other declarations supporting
its Motion for Summary Judgment. In response, in a letter dated
October 28, 2004, SCO asked IBM to disclose all declarations,
witness statements, and affidavits in its possession, custody, or
control concerning any subject matters covered by the declarations
that IBM had selectively disclosed. IBM not only has declined to
produce any such material, but has not even responded to SCO's
letter requesting it. In light of Mr. Pfeffer's most recent
testimony, which contravenes IBM's narrow interpretation of the
restrictions in the software agreements, and in light of IBM's
failure to disclose his declaration, SCO reasonably believes that
the declaration Mr. Pfeffer gave to IBM, and any other declarations
that IBM declined to produce, would further raise issues of material
fact precluding summary judgment.
10. On
October 8, 2004, SCO subpoenaed Novell, Inc. and Paul, Hastings,
Janofsky & Walker LLP (Novell's counsel in the litigation in
which Otis Wilson and David Frasure gave their contradictory
testimony) for the production of documents related to the BSD
litigation and the software license agreements. On November 11,
Novell, responding for both parties, delivered to SCO only documents
concerning the BSD litigation. On November 15, Novell informed SCO's
counsel that documents related to the license agreements would be
available for inspection in Provo, Utah, on Friday, November 19,
just four days before SCO's November 23 deadline to file its
opposition to summary judgment. Based on the declarations SCO will
submit with its opposition, as well as the contradictory testimony
of IBM's declarants regarding the meaning of the license agreements,
SCO reasonably believes that the documents that Novell has only
recently produced will bring to light evidence giving rise to issues
precluding summary judgment.
11. With
respect to IBM's claim that Novell has waived SCO's intellectual
property rights, SCO has submitted declarations from the chief
negotiators of the 1995 Asset Purchase Agreement ("APA') and
the 1996 amendment thereto (Ed Chatlos, Jim Wilt, and Steve
Sabbath), who state therein that the parties never intended for
Novell to have the right to waive, or to direct or require SCO to
waive, any of SCO's intellectual property protections under the SVRX
licenses. Based on these declarations, as well SCO's reading of the
APA under settled principles of contract construction, SCO intends
to take the depositions of other participants in the negotiations
and reasonably expects that the testimony of the other participants
will be consistent with the declarations by the chief negotiators.
12. With
respect to IBM's claim that SCO has waived its own rights, SCO
intends to take depositions of, among others, the IBM employees
responsible for accessing SCO's password-protected website - the
sole ground for IBM's contention that SCO has made certain source
code impermissibly available. SCO reasonably expects that such
testimony will confirm that the evidence that SCO has submitted
showing that IBM obtained access to that code only by improperly
by-passing SCO's log-in procedure and hacking onto SCO's website.
November 30, 2004
I declare under penalty of
perjury that the foregoing is true and correct.
____[signature]_____
Edward Normand
CERTIFICATE OF SERVICE
Plaintiff, The SCO Group, Inc. hereby
certifies that a true and correct copy of
DECLARATION OF EDWARD
NORMAND was served on Defendant International Business
Machines
Corporation on this 30th day of November, by depositing it
in U.S. Mail, first class,
postage prepaid, to their counsel of
record as indicated below:
Evan R. Chesler, Esq.
Cravath, Swaine & Moore LLP
[address]
Donald J. Rosenberg, Esq.
[address]
Alan L. Sullivan, Esq.
Todd M. Shaughnessy, Esq.
Snell & Wilmer L.L.P.
[address]
Attorneys for Defendant/Counterclaim Plaintiff IBM Corp.
___[signature]_____
|
|
|
|
| Authored by: Anonomous on Saturday, December 04 2004 @ 05:01 AM EST |
s/Correcctions/Corrections/
-Anonomous.
[ Reply to This | # ]
|
| |
| Authored by: Naich on Saturday, December 04 2004 @ 05:08 AM EST |
| Ooh! I get to do this one. Excellent. [ Reply to This | # ]
|
- Sun drafted new OSI compatible license based on MPL - Authored by: Anonymous on Saturday, December 04 2004 @ 08:20 AM EST
- Interesting Turn in the software patent process - Authored by: Anonymous on Saturday, December 04 2004 @ 08:52 AM EST
- More on the SUN license. - Authored by: Anonymous on Saturday, December 04 2004 @ 12:50 PM EST
- OT Here - Authored by: Anonymous on Saturday, December 04 2004 @ 01:07 PM EST
- HATCH, JAMES & DODGE - Authored by: Anonymous on Saturday, December 04 2004 @ 02:26 PM EST
- Whatever happened to the Linus, RMS, et al dispositions? - Authored by: Anonymous on Saturday, December 04 2004 @ 06:03 PM EST
- MSN Spaces forces new users to grant M$soft permission to "use, copy, distribute, transmit, etc. - Authored by: Anonymous on Saturday, December 04 2004 @ 07:40 PM EST
- MSN Spaces forces new users to grant M$soft permission to "use, copy, distribute, transmit, etc. - Authored by: Anonymous on Saturday, December 04 2004 @ 08:13 PM EST
- Clickable Link - Authored by: micheal on Saturday, December 04 2004 @ 10:33 PM EST
- MSN Spaces forces new users to grant M$soft permission to "use, copy, distribute, transmit, etc. - Authored by: Brian S. on Saturday, December 04 2004 @ 11:11 PM EST
- MSN Spaces forces new users to grant M$soft permission to "use, copy, distribute, transmit, etc. - Authored by: Trepalium on Sunday, December 05 2004 @ 01:16 AM EST
- OT Linux in Asia. - Authored by: Brian S. on Saturday, December 04 2004 @ 11:31 PM EST
- NewsFlash: Microsoft Complements Groklaw - Authored by: dodger on Sunday, December 05 2004 @ 04:38 AM EST
- Can you help? - Authored by: Anonymous on Sunday, December 05 2004 @ 10:15 AM EST
| |
| Authored by: Anonymous on Saturday, December 04 2004 @ 05:32 AM EST |
"On what grounds did you begin this litigation?", because right now
it couldn't be more obvious that SCO are fishing if they turned up wearing
rubber waders and a hat full of lures.
Excuse my ignorance, but aren't you
supposed to have a case before you decide to cost a court and your
victim time and money by bringing a suit? [ Reply to This | # ]
|
| |
| Authored by: PeteS on Saturday, December 04 2004 @ 06:33 AM EST |
| From paragraph 9:
In light of Mr. Pfeffer's most recent testimony,
which contravenes IBM's narrow interpretation of the restrictions in the
software agreements, and in light of IBM's failure to disclose his
declaration, SCO reasonably believes that the declaration Mr. Pfeffer gave to
IBM, and any other declarations that IBM declined to produce, would further
raise issues of material fact precluding summary judgment.
Well now,
that's interesting. It's certainly not the impression I got when reading Martin
Pfeffer's declaration
I read it more as a declaration of legal weasel
words (as AllParadox might say) that really do nothing to actually
contradict IBM's position.
It seems merely to say that the license
states what it is by it's clear wording, and fails to meet the bar of
contradicting IBM's position that code written or licensed by IBM from third
parties was beyond the purview of the license from
AT&T.
PeteS
---
Artificial Intelligence is no match for Natural
Stupidity [ Reply to This | # ]
|
| |
| Authored by: Stumbles on Saturday, December 04 2004 @ 06:42 AM EST |
This SCO song is really getting old. This is pretty much all they have
done since the beginning..... continually asking for more and more and
more discovery. I don't think I could be a good judge as I would have
slapped SCO with some kind of legal order to get on with their case.
Oh, wait there is the two court orders to show their evidence. Never
mind.
Can SCO scrape lower than the bottom of the barrel now? I'd say
making unsubstantiated claims IBM hacked their website is just about
it. Just how stupid does SCO think IBM is? They should have already
gotten a clue with the performance of their lawyers.
---
You can tune a piano but you can't tuna fish.[ Reply to This | # ]
|
| |
| Authored by: PeteS on Saturday, December 04 2004 @ 07:15 AM EST |
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group".
Main posts must use the name and position of the poster at "The SCO
Group".
Main posters must post in their official capacity at "The SCO Group".
Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.
PJ says you must be on your very best behavior.
If you want to comment on this thread, please post under the off-topic thread,
"OT", found above.
---
Artificial Intelligence is no match for Natural Stupidity[ Reply to This | # ]
|
| |
| Authored by: marbux on Saturday, December 04 2004 @ 08:31 AM EST |
9. SCO has learned that IBM obtained a declaration
from Martin Pfeffer which IBM did not disclose with its other declarations
supporting its Motion for Summary Judgment. In response, in a letter
dated October 28, 2004, SCO asked IBM to disclose all declarations, witness
statements, and affidavits in its possession, custody, or control concerning
any subject matters covered by the declarations that IBM had selectively
disclosed. IBM not only has declined to produce any such material, but
has not even responded to SCO's letter requesting it. In light of Mr.
Pfeffer's most recent testimony, which contravenes IBM's narrow interpretation
of the restrictions in the software agreements, and in light of IBM's failure to
disclose his declaration, SCO reasonably believes that the declaration Mr.
Pfeffer gave to IBM, and any other declarations that IBM declined to produce,
would further raise issues of material fact precluding summary
judgment.
This paragraph raises more questions than it answers.
The fact that it does not exhibit the referenced letter to IBM's lawyers raises
an eyebrow, as the failure to do so leaves important relevant considerations
unaddressed.
First, I'll assume that IBM will admit in response that such a
declaration exists. However, the fact that SCO's lawyers want it does not mean
they are entitled to it.
Second, a request in a letter may or may not
satisfy the specific requirements of a formal discovery request. Under Fed. R. Civ. P.
34(b), a request to produce documents or other things must include certain
information:
The request shall set forth, either by individual
item or by category, the items to be inspected, and describe each with
reasonable particularity. The request shall specify a reasonable time, place,
and manner of making the inspection and performing the related
acts.
So it's fair to wonder whether the letter set the time,
place, and manner of production, as well as the precise description of what it
is that SCO's lawyers asked to be produced. If the letter did not specify a
time for IBM to respond, IBM is at minimum arguably under no duty of timely
response. Moreover, because the witness statement is potentially exempt from
disclosure (discussed below), and because the court has already set a date for
the parties to exchange privilege logs, the court's order likely takes
precedence over any response time set by SCO's letter.
Third, the federal
courts have been uniform in holding that phrases such as "concerning any subject
matters" are too vague and ambiguous to satisfy the particularity requirements
of a discovery request. See e.g. Chubb Integrated Systems v. National
Bank of Washington, 103 F.R.D. 52, 58 ( D.D.C. 1984)("[p]ertaining or
relating to is too vague"); Goodell v. Rehrig International, Inc., 683 F.
Supp. 1051 (E.D. Va. 1985) (similar), affirmed, 865 F.2d 1257 (4th Cir.
1989).
Fourth, counsel for SCO is at least constructively aware that witness
statements taken by or for opposing counsel are presumptively immune from
discovery as attorney work product:
(3) Trial Preparation:
Materials.
Subject to the provisions of subdivision (b)(4) of this rule, a
party may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in anticipation
of litigation or for trial by or for another party or by or for that other
party's representative (including the other party's attorney, consultant,
surety, indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the preparation of
the party's case and that the party is unable without undue hardship to obtain
the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation.
Fed. R. Civ. P.
26(b). (Emphasis added.) That witness statements prepared in anticipation of
litigation or for trial have a qualifiedly immunity from discovery has been
beyond question since the Supreme Court's seminal decision in Hickman v
Taylor, 329 U.S. 495 (1947). Law students all study this case and its
progeny as part of their introductory civil procedure classes. Basic
understanding of the principles involved and their limits is essential to a
lawyer's investigation and preparation of a case.
SCO's objection to partial
summary judgment on grounds that it should first have access to the relevant
witness statement would have far more credibility had SCO first moved for an
order requiring production of the document, exhibiting its discovery request and
supporting affidavits, and making the required showing of need and hardship.
That it has not done so speaks volumes about the SCO lawyers' evaluation of
their entitlement to the relevant witness statement. ---
Retired lawyer [ Reply to This | # ]
|
| |
| Authored by: tgf on Saturday, December 04 2004 @ 08:57 AM EST |
Okay, so I'm sure this got discussed to death back in September,
when SCOG were filing 'incompatible' combinations of rule 56
motions, but I've now forgotton, and I hope someone can remind me.
SCOG have just filed both a PSJ opposition motion and a rule 56(f)
(need more discovery) motion. But I thought the idea of the rule
56(f) motion is that it is filed _in_lieu_of_ the PSJ opposition
motion, on the basis that the PSJ defendent takes the gamble that
the Judge agrees that the PSJ cannot be decided without that
additional discovery -- have I got that right or wrong?
There is also the issue of the rule 56(e) which ISTR is the please
"dismiss this ridiculous [P]SJ motion" motion, or is my memory
playing tricks on me?
So, I would be very grateful if someone can answer one or both of
those questions, please.
Tim
---
Oxymoron of the day:
Microsoft innovation[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 04 2004 @ 08:57 AM EST |
RE: "In addition, the sworn deposition testimony of Mr. Wilson and Mr.
Rodgers in previous litigation flatly contradicts their declarations for IBM in
this case."
Caldera/SCOx is trying to build it's own backdoor to facts that are older than
they are!
What SCO is saying is that they don't understand that the educational license
and the commercial license were different. They again are looking at BSDI
statements and testimony that were about an educational license... Where the IBM
case is about a commercial license that WAS a different license at the time.
In the BSDI case, where USL was trying to use "concept and methods" to
claim code that BSD had written, the evidence now shows that USL was trying to
steal the rights to something that they had, basicly, allowed to wander into the
public domain... AND USL was trying to steal code that BSD developed independent
of USL, and USL lost this arguement as when USL tried to get an injunction vs
BSDI to stop the distribution of the BSD UNIX... the judge denied their request
for an injunction.
SCOx is trying to steal back something that one judge already has said that USL
(the former holder of UNIX rights before SCOx) could not. The reasons were
obvious to that judge then and should be obious tot this judge now!
Read this RULING on USL's request for injunction:
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/930303.ruling.txt
From this :
http://cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.html
Then read this:
The 1994 USL-Regents of UCal Settlement Agreement - PDF and text
http://www.groklaw.net/article.php?story=20041126130302760
[ Reply to This | # ]
|
| |
| Authored by: tangomike on Saturday, December 04 2004 @ 10:05 AM EST |
In the 'small army'(PJ's phrase?) of deposants/depositions didn't TSCOG have
someone present at all these? Was their rep asleep (it's happened in court
remember)? Or is this just another example of little to no preparation by
BS&F?
I have to say that whether it's conscious delaying tactics or just extraordinary
incompetence, BS&F are really creating a reputation for themselves. Anybody
who seriously wants to bring a suit should avoid Boies, Schiller and Flexner.
---
The SCO Group's secret project to develop Artificial Stupidity has obviously
succeeded!
[ Reply to This | # ]
|
| |
| Authored by: Kalak on Saturday, December 04 2004 @ 11:43 AM EST |
Has anyone installed the .src.rpm to see if SCO/Caldera applied any patches,
thus modifying the kernel? Assuming they made this w/o planning on hiding their
tracks, the changes would be listed in the spec file in the .src.rpm. I'd look
myself, but I don't have a copy of the src.rpm from SCO. Can someone check or
post a link?
---
Kalak: I am, and always will be, an idiot.
Also, I stayed at a Holiday Inn Express last night.[ Reply to This | # ]
|
| |
| Authored by: jim Reiter on Saturday, December 04 2004 @ 03:52 PM EST |
Normand writes:
11. With respect to IBM's claim that Novell has waived
SCO's intellectual property rights, SCO has submitted
declarations from the chief negotiators of the 1995 Asset
Purchase Agreement ("APA') and the 1996 amendment thereto
(Ed Chatlos, Jim Wilt, and Steve Sabbath), who state
therein that the parties never intended for Novell to have
the right to waive, or to direct or require SCO to waive,
any of SCO's intellectual property protections under the
SVRX licenses. Based on these declarations, as well SCO's
reading of the APA under settled principles of contract
construction, SCO intends to take the depositions of other
participants in the negotiations and reasonably expects
that the testimony of the other participants will be
consistent with the declarations by the chief negotiators.
If I read Mr. Normand correctly, TSG intends to prove, in
depositions, that the Parties to the APA did not mean the
wording in APA 4.16 (b) even after amending it in
amendment 2. Unbelievable and this is a lawyer talking.
What a piece of work!
I started my business career in heavy construction. My
word and a handshake was sufficient in many cases to make
a contract.
Apparently, in todays world a written and signed contract
is not considered binding in some circles.
I do not know why anyone would ever want to do business
with anyone associated with the TSG side of this case,
lawyers included.
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 04 2004 @ 04:15 PM EST |
SCO... Delay... Litigation
mmmm... doesn't sound so bad, actually.[ Reply to This | # ]
|
- but technically - Authored by: Anonymous on Monday, December 06 2004 @ 07:09 PM EST
| |
| Authored by: rsteinmetz70112 on Saturday, December 04 2004 @ 06:24 PM EST |
Can someone please point me to this declaration? It is referenced in SCOG's
latest filing but not attached or as far as I can find availible on one of the
standard sites.
---
Rsteinmetz
"I could be wrong now, but I don't think so."[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 04 2004 @ 08:50 PM EST |
Why would a declaration from a current member of your legal team be used?
Wouldn't you just provide all of this type of material in an organized memo in
support or opposition to the relvant claims?
I'm confused.[ Reply to This | # ]
|
| |
| Authored by: _Arthur on Saturday, December 04 2004 @ 09:32 PM EST |
I have question for AllParadox, Marbux, and others familiar with the US
judicial system.
This is a Civil case. I understand that is thus a pay-as-you go case, with all
Court costs borne by both Litigants.
How much does 1 month of active litigation costs ? I'm not talking about
lawyers, I'm talking about court costs; the waste of valuable Judge time,
courtrooms, clerks and so on...
Can we estimate it? How high are the court costs so far, $2M each ?
?
_Arthur[ Reply to This | # ]
|
| |
| Authored by: blacklight on Saturday, December 04 2004 @ 10:54 PM EST |
The Edward Normand declaration is nothing more than an attempt to manufacture
conflicts of fact to defeat IBM's PSJ and manufacture prospective conflicts of
fact to delay resolution of IBM's PSJ.[ Reply to This | # ]
|
| |
| Authored by: Christian on Sunday, December 05 2004 @ 12:04 AM EST |
SCO says
With respect to IBM's claim that SCO has waived its own
rights, SCO intends to take depositions of, among others, the IBM employees
responsible for accessing SCO's password-protected website - the sole
ground for IBM's contention that SCO has made certain source code
impermissibly available.
Emphasis added. To bad for SCO that in
their Memorandum in
Opposition to IBM's Motion for Partial Summary Judgment on its Counterclaim for
Copyright Infringement (Eighth Counterclaim) they say The last
sale of Linux Server 4.0 was on May 31, 2004.
This is of course
well after they started their Linux licensing program. IBM's downloading of the
kernel from SCO is irrelevant, as SCO admits to distributing it. There is no
difference between distributing to customers and distributing to the general
public on a web site as far as the GPL is concerned.
SCO also admits that
this sale was "a few months after determining that Linux was tainted with
misappropriated SCO code." Did SCO intentionally distribute the Linux kernel
after they realized that it was infected by magic UNIXness? Yep. [ Reply to This | # ]
|
| |
| Authored by: globularity on Sunday, December 05 2004 @ 05:40 AM EST |
It just occurred to me SCOX's legal filings may be pretty good evidence that it
never had a case and the principle officers knew that they never had a case but
didn't inform shareholders. Knowingly filing a meritless suit which could ruin
the company is a pretty negligent thing to do. A much as SCOX's shareholder
probably are getting what they deserve, it would be nicer to see them suing Darl
and the board for the scam perpetrated on them.
My A$0.02
mark
---
Australia: A first world country with second rate rate leaders and 3rd world
ambitions.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 05 2004 @ 07:02 AM EST |
I suppose this is a reference to the "blank password" popup that
appeared on their web-site.
Unfortunately for SCO, I don't think their lawyers knew enough about RFCs and
anonymous access. Aside from the fact that a trial by jury ain't gonna buy this
one.
Note that by convention for many years, anonymous FTP access used username:
anonymous password: <optional E-mail>
It should be noted that anonymous access is disabled by the server
administrator. If this worked at the time, I think SCO is going to have a very
hard time arguing that they disabled anonymous access to their FTP site.
[ Reply to This | # ]
|
| |
| Authored by: codswallop on Sunday, December 05 2004 @ 08:34 PM EST |
| We keep coming back here. With Mr. Pfeffer's declaration, things become
clearer.
AT&T was talking out of both sides of its corporate mouth. Its
original legal position was similar to SCO's claims minus the most ridiculous
bits like inevitable mental contamination. I've quoted the most interesting
bits.
1)
"USL would not acquire ownership over material that
a licensee independently created merely because the licensee included that
material in a "SOFTWARE PRODUCT,"
This obviously hurts SCO's case
unless they can show IBM based their code on licensed Unix code - thus the
request for all the source code control info. This still requires the court to
buy into the SCO/AT&T theories.
2)
any modifications or
derivative works "based on such SOFTWARE PRODUCT") would be subject to the
restrictions set forth in AT&T's confidentiality provision, regardless of
the licensee's ownership interest in any part of such "SOFTWARE
PRODUCTS."
a) modifications goes beyond derivative works.
b)
AT&T is slanting it's case according to its audience. The legal staff wants
to keep the most restrictive possible terms, while marketing hides legal's
interpretation from the customers.
3)
licensee "shall not
make any disclosure of any or all of such SOFTWARE PRODUCTS (including methods
or concepts utilized therein) to anyone, except to employees of LICENSEE to whom
such disclosure is necessary
"Methods and concepts" may have been
obsolete, but I doubt Otis Wilson would have had any luck convincing legal too
remove the language. The letter agreement struck this language, but
added:
Nothing in this agreement shall prevent LICENSEE from
developing or marketing products or services employing ideas, concepts, know-how
or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject
to this Agreement, provided that LICENSEE shall not copy any code from such
SOFTWARE PRODUCTS into any such product or in connection with any such service
and employees of LICENSEE shall not refer to the physical documents and
materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are
developing any such products or service or providing any such service. 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.--
Given this, SCO's case against IBM has to have one or
more of the following arguments to survive:
a) The letter agreement isn't
valid
I don't see this getting anywhere, but cf. below.
b) The letter
agreement doesn't affect the Dynix code.
I can't see how IBM's agreement
wouldn't cover any code they owned regardless of origin. There's also the
possibility that Sequent consulted the AT&T source. This would bring the
code under the control of the letter agreement substitute language.
c) IBM
violated the terms of the substitute language in coding the material they
donated to linux, AND the relaxation of restrictions doesn't cure any past
behavior, even though the behavior would only violate the license at the time of
publication, since it was not an offense to refer to the Software Product for
internal use.
4)
it was AT&T's intent to prevent through
its UNIX license agreements the unauthorized use and disclosure of more than
just literally copied UNIX source code. 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 by literally or non-literally copying UNIX source code, disclosing
methods or concepts from UNIX, and/or exploiting licensees' access to the
technology in UNIX) without paying UNIX license fees to
AT&T
This is certainly clear enough.
5)
any agreements (including any side letter agreements) that AT&T entered into
with one of its UNIX licensees would have no legal effect on the contractual
obligations of AT&T vis-à-vis any of its other UNIX
licensees.
This has to be aimed at the Sequent
code.
6)
I do not recall any instance during my tenure in which
either AT&T or USL agreed (in any license agreement or supplement or
modification thereof) to reduce its protection under a UNIX license to prevent
the unauthorized use or disclosure of only source code. Any such change would
have been a significant and material change to the standard terms of AT&T's
license agreement and, in 1985, clearly would have required my, or to a lesser
extent Burt Levine's, approval. I do not recall any such proposed or actual
modification to the standard license agreement.
This looks like
the start of an attack on the letter agreement. It was signed by David Frasure
acting for Otis Wilson. If he didn't have the authority to relax the terms in
question, would it matter? Both sides acted as if they thought it was valid.
Later on the amended the replacement language. Steve Sabbath signed amendment X
for Santa Cruz and James Tolover did so for Novell. Amendment X was signed on
10/17/96.
---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, December 06 2004 @ 12:14 PM EST |
"...SCO enjoys eternal litigation..." ?
Only as long as the lawyers get paid.
P.J.
Have you ever seen a lawyer drop a large case because the client failed to
make payments?
Curious in Never Never Land.[ Reply to This | # ]
|
|
|
|
|
