Here's the Declaration of Michael A. Jacobs in Support of Novell's Motion to Stay [PDF] as text, thanks to the unswervingly productive Steve Martin, who reports his eyes are officially bleeding after doing this one. Mine too. It's 108 pages long. That's mainly because the SUSE request for arbitation is attached as one of the exhibits. There are, as you can see, thirteen exhibits attached to this declaration. Steve did them all. But Geeklog doesn't like such a long document, and won't render it, so I've had to place links to some of the documents, such as to SCO's 2nd Amended Complaint, which Groklaw already has done as text. Only snips from Novell's Answer and Counterclaims and
SCO's Answer to Novell's Counterclaims were included as exhibits by SUSE, so I'm providing the links, in case you'd like to read the entire documents.
What stands out are two things: they "assign a value to this
arbitration of between USD 50 million and 100 million" and they claim when the UnitedLinux partners went into the project, they agreed to "have the LLC own and license to the members all IP rights the
members may have in the UnitedLinux technology for the members'
independent inclusion in, and marketing of, their own Linux
products." No one was to sue any of the others for IP claims. Further, while SCO has been vague, the document states, about exactly what they think is infringing, SCO's list of files attached as an exhibit to their 2nd Answer seem to all be taken from the Linux kernel, and Caldera/SCO didn't contribute that to UL, SUSE points out. It wasn't theirs to contribute. According to the terms of the UL contracts and for a number of other listed reasons, SUSE says SCO has no right to sue SUSE or Novell or end users over anything in the Linux kernel:
82. The MTA and JDC preclude Respondent from asserting infringement
claims against any technology included in the UnitedLinux kernel
for multiple reasons, including: (a) the MTA and JDC divest
Respondent of ownership of any copyrights it may have claimed in
any technology included in the UnitedLinux Software (except for
Pre-Existing Technology, which is not at issue); (b) Claimant has a
broad royalty-free license to use any intellectual property rights
associated with the UnitedLinux technology, including the right to
sublicense such rights to Novell and to end-users; and (c) the MTA
and JDC require the source code for the UnitedLinux kernel to be
made available for free use and distribution under the GPL license
terms.
If this SUSE gambit works, I'd say it's pretty much curtains for SCO as far as any copyright claims are concerned, even if they have any rights to any copyrights, which Novell says they don't. I guess that's what stands out. It really is curtains, if SUSE wins this. And when you read this document, ask yourself, don't they deserve to?
***************************
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[address]
[phone]
[fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[address]
[phone]
[fax]
Attorneys for Novell, Inc.
_______________________________
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff and Counterclaim-Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim-Plaintiff.
|
DECLARATION OF MICHAEL A.
JACOBS IN SUPPORT OF NOVELL'S
MOTION TO STAY
[REDACTED pursuant to this Court's
April 10, 2006 Order]
Case No. 2:04-CV-00139
Judge Dale A. Kimball |
I, Michael A. Jacobs, declare as follows:
1. I am an attorney duly licensed to practice law in the State
of California and a partner in the law firm of Morrison &
Foerster LLP, counsel of record for Defendant and
Counterclaim-Plaintiff Novell, Inc. ("Novell") in this action. I
was admitted to practice before this Court pro hac vice by this
Court's Order of February 10, 2004. I submit this declaration in
support of Novell's Motion to Stay. The statements made herein are
based on my personal knowledge.
2. As discussed below, some of the exhibits attached hereto
include information that may be subject to a confidentiality
clause. Accordingly, the complete version of this declaration,
which includes full and unredacted copies of all exhibits, is being
submitted under seal. A public version of this declaration, which
deletes or redacts confidential documents and information, is also
being submitted.
3. Attached hereto are true and correct copies of the following
documents:
(a) Exhibit I is a true and correct copy of the Second Amended
Complaint filed on February 3, 2006 by Plaintiff SCO in this
action, The SCO Group, .Inc. v. Novell, Case No. 2:04-CV-0139,
United States District Court for the District of Utah.
(b) Exhibit 2 is a true and correct copy of the executed Master
Transaction Agreement for the UnitedLinux project, dated May 29,
2002, received from Novell. This Exhibit is being filed under seal
due to a confidentiality clause in the Master Transaction
Agreement. Thus, the public version of this declaration does not
include this document.
(c) Exhibit 3 is a true and correct copy of the executed
UnitedLinux Joint Development Contract, dated May 29, 2002,
received from Novell. This Exhibit is being filed under seal due to
a confidentiality clause in the Joint Development Agreement. Thus,
the public version of this declaration does not include this
document.
(d) Exhibit 4 is a true and correct copy of relevant excerpts of
Novell's Answer and Counterclaims (specifically, pages 1, 17, and
45), filed in this action on July 29, 2005.
2
(e) Exhibit 5 is a true and correct copy of relevant excerpts
from SCO's Answer to Novell's Counterclaims (specifically, pages 1,
6, and 25), filed in this action on September 12, 2005.
(f) Exhibit 6 is a true and correct copy of the Request for
Arbitration filed on April 10, 2006 by SuSE Linux, GmbH with The
Secretariat of the ICC International Court of Arbitration,
[address]. The Request for Arbitration is being been filed under
seal because it contains quotations of the terms of the Master
Transaction Agreement and the Joint Development Agreement, which
have confidentiality clauses. The public version of this
declaration contains a redacted version of this Exhibit, which
deletes quotations of the contents of the Master Transaction
Agreement and the Joint Development Agreement. Exhibit 6 does not
include a complete set of the exhibits submitted to the ICC with
the Request for Arbitration. However, most of the other documents
attached hereto (specifically, Exhibits 1, 2, 3, and 7 to 13) have
been submitted to the ICC as exhibits to the Request for
Arbitration.
(g) Exhibit 7 is a true and correct copy of the UnitedLinux
press release titled "Caldera, Conectiva, SuSE, Turbolinux Partner
to Create UnitedLinux and Produce a Uniform Version of Linux For
Business" dated May 30, 2002, available at
http://www.unitedlinux.com/en/press/pr053002.html.
(h) Exhibit 8 hereto is a true and correct copy of the
UnitedLinux press release titled "United Linux Releases Version
1.0" dated November 19, 2002, available at
http://www.
unitedlinux.com/en/press/pr111902.html.
(i) Exhibit 9 hereto is a true and correct copy of the SCO press
release titled "SCO Unveils SCO Linux 4, Powered by UnitedLinux"
dated November 19, 2002, available at
http://ir.sco.com/releasedetail.cfm?ReleaseID=95573.
3
(j) Exhibit 10 is a true and correct copy of the SuSE press
release titled "SUSE LINUX Unveils the Next Generation of SUSE
Linux Enterprise Server" dated November 19, 2002, available at
http://www.novell.com/news/press/archive/2002/suse_archive/sles_8.html.
(k) Exhibit 11 is a true and correct copy of a letter from Darl
McBride to Jack Messman dated May 12, 2003.
(l) Exhibit 12 is a true and correct copy an article by S.
Shankland titled "SuSE Sheltered by SCO Pact" dated May 5, 2003,
available at
http://news.com.com/SuSE+sheltered+by+SCO+pact/2100-1016_3-999620.html.
(m) Exhibit 13 is a true and correct copy of an article by John
Blau titled "Q&A: SCO's Chris Sontag on how Unix plus Linux
equals trouble" dated May 13, 2003, available at
http://www.computerworld.com/printthis/2003/0,4814,81191,00.html.
I declare under penalty of perjury of the laws of the United
States that the foregoing is true and correct.
Executed on this 7th day of April, 2006 in San Francisco,
California.
___[Signature of Michael A. Jacobs]____
4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of April, 2006, I
caused a true and correct copy of the foregoing DECLARATION OF
MICHAEL A. JACOBS IN SUPPORT OF NOVELL'S MOTION TO STAY
[REDACTED pursuant to this Court's April 10, 2006 Order]
to be served via first class mail, postage prepaid, to the
following:
Brent O. Hatch
Mark F. James
Mark R. Clements
HATCH JAMES & DODGE, P.C.
[address]
Kevin P. McBride
[address]
Stephen N. Zack
Mark J. Heise
BOIES, SCHILLER & FLEXNER LLP
[address]
Robert Silver
Edward J. Normand
BOIES, SCHILLER & FLEXNER LLP
[address]
___[signature]____
5
EXHIBIT 1
6
SCO's 2nd Amended Complaint and Exhibit A, copyright registrations by SCO, and Exhibit B, list of Novell's alleged unauthorized copying in its use and distribution of SUSE Linux.
[pages 7-40 of the PDF]
40
EXHIBIT 2
[FILED UNDER SEAL pursuant to this Court's
April 10, 2006 Order]
41
EXHIBIT 3
[FILED UNDER SEAL pursuant to this Court's
April 10, 2006 Order]
42
EXHIBIT 4
43
MORRISON & FOERSTER LLP
Michael A. Jacobs (pro hac vice)
Kenneth W. Brakebill (pro hac vice)
[Address]
[Phone]
[Fax]
ANDERSON & KARRENBERG
Thomas R. Karrenberg, #3726
John P. Mullen, #4097
Heather M. Sneddon, #9520
[Address]
[Phone]
[Fax]
Attorneys for Defendant Novell, Inc.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware corporation,
Plaintiff,
vs.
NOVELL, INC., a Delaware corporation,
Defendant.
|
NOVELL, INC.'S ANSWER AND COUNTERCLAIMS
(Jury Trial Demanded)
Case No. 2:04CV00139
Judge Dale A. Kimball
|
44
ANSWER
In response to Plaintiff The SCO Group, Inc.'s
("SCO") Amended Complaint filed July 9, 2004, Defendant Novell,
Inc. ("Novell") pleads as follows:
1. Novell admits that it entered into an Asset Purchase
Agreement with SCO's alleged predecessor in interest dated
September 19, 1995. Each and every other allegation in paragraph 1
is denied.
2. Novell admits that Attachment E to the Asset Purchase
Agreement provided a list of approximately 106 copyright
registrations. Novell denies that Attachment E, alone or in
connection with the Asset Purchase Agreement, transferred any UNIX
or UnixWare copyrights to SCO. Each and every other allegation in
paragraph 2 is denied.
3. Novell admits that SCO has registered a claim to UNIX and
UnixWare copyrights with the United States Copyright Office. Each
and every other allegation in paragraph 3 is denied.
4. Novell admits that Novell has registered its claim to UNIX
and UnixWare copyrights with the United States Copyright Office.
Each and every other allegation in paragraph 4 is denied.
5. Novell admits that it has, in good faith, publicly stated its
belief that it owns UNIX and UnixWare copyrights. Each and every
other allegation in paragraph 5 is denied.
6. Denied.
7. Denied.
8. Novell denies that SCO is entitled to any relief under its
Amended Complaint, and in each and every allegation in paragraph 8
is therefore denied.
9. Admitted.
45
Caldera's total revenue at the end of fiscal year 2001 and 95%
of Caldera's total revenue at the end of fiscal year 2002. But
Caldera's revenue from the sale of UNIX-based products declined in
the fiscal quarters following the acquisition. Caldera experienced
significant decreases in actual and forecasted revenue of the
acquired Santa Cruz operations.
33. Caldera incurred significant financial losses during its
fiscal years 2000, 2001 and 2002. Caldera suffered losses from
operations totaling $32 million in 2000, $133 million in 2001 and
$24 million in 2002.
34. In June 2002, Caldera hired Darl McBride as its President
and Chief Executive Officer. Mr. McBride was responsible for the
company's strategic direction and planning.
35. On our about the time of Mr. McBride's arrival at Caldera,
Caldera began to pursue a new business strategy for the company,
launching a rebranding effort of its products and services as well
as its corporate image.
36. On August 26, 2002, Caldera announced that it would change
its name to The SCO Group, Inc. ("SCO"), pending shareholder
approval. On or about that time, Caldera then began doing business
as SCO. Caldera soon thereafter changed its trading symbol on the
NASDAQ Stock Exchange from "CALD" to "SCOX." Caldera's name change
was formalized on May 16, 2003, when Caldera's shareholders
approved an amendment to Caldera's certificate of incorporation
that changed the company's name to SCO.
37. As part of Caldera's rebranding efforts and shift in
business strategy, Caldera purportedly initiated a review of its
intellectual property rights. This effort culminated in the
launching of a licensing initiative, which it called SCOsource, in
January 2003. SCOsource, as described in further detail below, was
an effort by Caldera to expand the revenue base of a company that
had never before been profitable.
46
JURY TRIAL DEMAND
Counterclaim-plaintiff Novell here by demands a trial by jury of
any and all issues triable by a jury.
DATED: July 29, 2005.
|
ANDERSON & KARRENBERG
[signature]
Thomas R. Karrenberg
John P. Mullen
Heather M. Sneddon
MORRISON & FOERSTER LLP
[signature]
Michael A. Jacobs
Kenneth W. Brakebill
|
47
EXHIBIT 5
48
Brent 0 . Hatch (5715)
Mark F. James (5295)
HATCH, JAMES & DODGE
[address]
[phone]
[fax]
Stuart H. Singer (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Robert Silver (admitted pro hac vice)
Edward Normand (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Stephen N. Zack (admitted pro hac vice)
BOIES, SCHILLER & FLEXNER LLP
[address]
[phone]
[fax]
Attorneys for The SCO Group, Inc.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC., Plaintiff, v. NOVELL, INC., Defendant.
|
SCO'S ANSWER TO NOVELL'S COUNTERCLAIMS
Case No. 2:04CV00139
Honorable Dale A. Kimball
|
49
30. Admits the allegations of ¶30.
F. Caldera's Financial Position and Business Strategy
31. Admits that Caldera (like, on information and belief, Novell and nearly all other companies) did not produce a profitable Linux business; and admits the other allegations of ¶31.
32. Admits that, after Caldera's acquisition of Santa Cruz's Server Software and Professional Services divisions, most of Caldera's revenue came from UNIX products and services, including approximately 90% of its total revenues at the end of fiscal year 2001 and 95% of its total revenues at the end of fiscal year 2002; admits that (at least in part because of the unauthorized use of SCO's proprietary UNIX code and other protected materials in Linux) Caldera's actual and forecasted revenues from the sale of UNIX-based products declined in the fiscal quarters following the acquisition; but denies each and every other allegation of ¶32.
33. Admits the allegations of ¶33.
34. Admits that Caldera hired Darl McBride as its President and Chief Executive Officer in June 2002 and that Mr. McBride was responsible for Caldera's strategic direction, with input from other executives of the company; but denies each and every other allegation of ¶34.
35. Admits the allegations of ¶35.
36. Admits the allegations of ¶36.
37. Admits that SCO launched the SCOsource initiative to review, enforce, and defend SCO's ownership of its UNIX intellectual property (including copyrights); admits that
50
WHEREFORE, plaintiff and counterclaim-defendant SCO demands judgment dismissing Novell's counterclaims with prejudice, along with such other and further relief as the Court deems just and proper.
DATED this 12th day of September, 2005.
Respectfully submitted, HATCH, JAMES & DODGE, P.C.
Brent O. Hatch
Mark F. James
BOIES, SCHILLER & FLEXNER LLP
Stephen N. Zack
Robert Silver
Stuart H. Singer
Edward Normand
By ___[signature]
Counsel for The SCO Group, Inc.
51
EXHIBIT 6
[REDACTED pursuant to this Court's
April 10, 2006 Order]
52
HOMBURGER
BY FAX AND COURIER | FIVE COPIES
The Secretariat of the
ICC International Court of Arbitration
[address]
April 10, 2006 DAF | RAG | ROD | LUE
309729 | RAG | 000015.doc
Request for Arbitration
Ladies and Gentlemen
in the matter of
SUSE Linux GmbH
[address]
Claimant
represented by Michael A. Jacobs and|or Grant L. Kim and|or Kenneth
W. Brakebill, Morrison & Foerster LLP, [address], USA,
and|or
Georg Rauber and|or Felix Dasser and|or David Rosenthal, Homburger
Rechtsanwälte, [address]
vs.
The SCO Group, Inc.
[address]
Respondent
53
In the name and on behalf of Claimant the undersigned
respectfully submit this
Request for Arbitration
pursuant to Article 4 of the ICC Rules of International Arbitration
(the ICC Rules) and request the Arbitral Tribunal to grant the
following
Prayers for Relief:
-
Declare that Respondent is precluded under the Master
Transaction Agreement (MTA) and the UnitedLinux Joint Development
Contract (JDC) from asserting any copyright infringement claims
related to SUSE Linux;
-
Declare, in particular, that the MTA and JDC divest Respondent
of ownership of any alleged intellectual property rights in any
part of software included in the UnitedLinux Software (other than
Pre-Existing Technology and Enhancements);
-
Order Respondent to refrain from alleging publicly or against
third parties that the use and distribution of SUSE Linux infringes
upon Claimant's copyrights, as precluded by the MTA and JDC;
-
Order Respondent to pay damages in an amount to be determined
for breach of the MTA and JDC by improperly asserting claims
against Claimant and its licensees, and by attacking and
withdrawing support for the UnitedLinux project;
-
Order Respondent to bear all costs of the arbitration
proceeding, including the costs and expenses of the ICC and of the
arbitrators, as well as attorneys' fees, cost of lost executive
time and expert's costs, if any; and
-
Award any further relief that the Tribunal deems necessary to
effectuate the relief requested above.
54
Table of Contents:
1. Introduction |
4 |
II. Procedural Issues |
6 |
A. Preliminary Remarks |
5 |
B. Jurisdiction and Place of Arbitration |
5 |
C. Law Applicable to the Merits |
6 |
D. Appointment of Arbitrator |
7 |
E. Language of the Proceedings |
7 |
F. Amount In Dispute |
7 |
G. Scope of Present Submission |
7 |
III. The Parties |
8 |
A. Claimant |
8 |
B. Respondent |
9 |
IV. Summary Statement of Facts |
10 |
A. The Linux Operating System and the "Open Source" General
Public
License |
10 |
B. The Contracts at Issue |
13 |
C. The Development and Release of UnitedLinux 1.0 |
16 |
D. Respondent's Support for UnitedLinux and Release of SCO
Linux 4.0,
"Powered by United Linux" |
17 |
E. Respondent's Sudden Change in Position and Assertion of
Claims Against
Linux |
19 |
F. Respondent's Threats Against Claimant and Copyright
Infringement Claim
Based on Novell's Distribution of SUSE Linux |
21 |
V. Prayers for Relief |
24 |
55
I. Introduction
1. The present dispute arises from the "UnitedLinux" project of
Claimant, Respondent and two other vendors of the Linux computer
operating system. The purpose of the project was to jointly develop
and promote, through a jointly held Limited Liability Company, a
version of Linux called UnitedLinux (including future enhancements
and amendments thereto), with a view to encourage the widespread
adoption of UnitedLinux as a standard for the information
technology industry.
2. Consistent with this purpose, the UnitedLinux members agreed
that each member would have the right to commercialize the
UnitedLinux technology independently, free from claims that the
other members had any proprietary rights to such technology. In
particular, the UnitedLinux members agreed that each member would
have broad licenses to exploit and distribute Linux products that
include UnitedLinux technology. Consequently, in November 2002,
Respondent and Claimant both announced the release of
UnitedLinux-based products, called "SCO Linux" and "SUSE Linux",
respectively. Respondent actively promoted SCO Linux as "powered
by UnitedLinux".
3. However, shortly thereafter, Respondent fundamentally changed
its business strategy to the detriment of the agreements to which
it is a party. Respondent abandoned its Linux business and is now
attempting to undermine the very business that it had promised to
promote. Contrary to its commitments in the agreements in place,
Respondent is now asserting that it has proprietary rights to the
technology in UnitedLinux that are not licensed to its partners.
Respondent publicly claimed that SUSE Linux infringes copyrights
allegedly owned by Respondent, it sent threatening letters to
numerous Linux users and it also initiated lawsuits against alleged
infringers of Respondent's supposed proprietary rights.
4. In particular, Respondent recently filed a claim in the United
States District Court for the District of Utah against Claimant's
parent and licensee, Novell, alleging that Novell's distribution of
SUSE Linux Infringes Respondent's supposed copyrights. Respondent's
infringement claim against Novell threatens the Linux
56
business of Claimant. Claimant has initiated the present
arbitration to protect its interests and to hold Respondent to the
promises in the agreements that Respondent has willfully chosen to
ignore.
II. Procedural Issues
A. Preliminary Remarks
5. The advance payment on administrative expenses required by
Article 4.4 of the ICC Rules and Article 1.1 of Appendix III to the
ICC Rules has been transferred by wire to the International Court
of Arbitration as of today.
6. The undersigned are duly authorized to act on behalf of
Claimant.
Evidence:
– |
Powers of attorney |
Exhibit C-1 a|b |
7. All evidence presented by Claimant in the course of the present
arbitration proceedings will be identified as "Exhibit C-#" and
numbered consecutively throughout all briefs of Claimant.
8. A glossary of special terms and abbreviations used in this
Request for Arbitration is set forth in Exhibit C-2, which will be
amended in the further course of the proceedings from time to
time.
Enclosure:
– |
Glossary of Special Terms And Abbreviations |
Exhibit C-2 |
B. Jurisdiction and Place of Arbitration
9. This arbitration arises from. the agreement of Claimant,
Respondent, and two other companies to jointly develop and promote,
through the jointly held United Linux LLC, a standard version of
the Linux computer operating system, referred to as UnitedLinux. As
further discussed below, the arbitration concerns the rights and
obligations of Claimant and Respondent under two contracts related
to the UnitedLinux project:
57
-- Master Transaction Agreement (MTA) by and between
Respondent (then known as Caldera International, Inc.), Claimant
(then known as SuSE Linux AG), Conectiva Inc., and Turbolinux,
Inc., dated May 29, 2002;
-- UnitedLinux Joint Development Contract (JDC) by and
between the same parties and, in addition, UnitedLinux, LLC, dated
May 29, 2002.
Evidence:
– |
--Master Transaction Agreement, dated May 29, 2002 |
Exhibit C-3 |
– |
-- UnitedLinux Joint Development Contract, dated May 29, 2002 |
Exhibit C-4 |
10. REDACTED
11. Respondent has already filed claims in a U.S. court against the
licensee of Claimant directed against Claimant's SUSE Linux product
and has, thus, decidedly moved beyond the stage of attempting to
resolve any dispute concerning copyrights to Linux amicably. As
discussed below, Respondent's claims are completely inconsistent
with, and precluded by, the terms of the MTA and JDC. Therefore,
this dispute should be resolved by ICC arbitration as laid out in
the arbitration clause in said contracts.
12. REDACTED
C. Law Applicable to the Merits
13. REDACTED
58
D. Appointment of Arbitrator
14. REDACTED Pursuant to Articles 4.3 and 8.4 of the ICC
Rules, each party shall nominate an arbitrator. Claimant hereby
nominates the following arbitrator as a member of the three person
Arbitral Tribunal:
Dr. Roberto Dallafior
Hess Dallafior Rechtsanwälte
[address]
Switzerland
[phone]
[fax]
[email]
E. Language of the Proceedings
15.REDACTED
F. Amount In Dispute
16. For the purpose of determining the applicable ICC fees, Claimant
believes that it would be appropriate to assign a value to this
arbitration of between USD 50 million and 100 million.
G. Scope of Present Submission
17. The present submission is limited to the essential facts,
statement of claims and exhibits as required by Article 4.3 of the
ICC Rules. Claimant expressly reserves the right to further
substantiate its factual and legal statements and to bring new or
amended claims related to the matter in dispute and to provide
supporting evidence at a later stage of the proceedings.
59
Ill. The Parties
A. Claimant
18. Claimant SUSE Linux GmbH is a German corporation specializing in
the Linux operating system business. It is the legal successor of
the signatory SUSE Linux AG to the MTA and JDC. The terms SUSE
Linux GmbH and Claimant are used herein to refer to both companies,
as appropriate.
Evidence:
– |
Excerpts of Commercial Register for SUSE Linux GmbH, dated
October 19 and December 20, 2004, the latter with General
Assembly's resolution attached |
Exhibit C-5 a|b |
19. Claimant is an indirectly owned subsidiary of Novell, Inc.
(Novell), a Delaware corporation headquartered in Massachusetts,
USA. Novell became the owner of Claimant in January 2004.
20. Claimant is represented in this arbitration by the following
counsel:
Michael A. Jacobs, Grant L. Kim, Kenneth W. Brakebill
Morrison & Foerster LLP
[address]
[phone]
[fax]
[email addresses]
and|or
Georg Rauber, Felix Dasser, David Rosenthal
Homburger Rechtsanwälte
[address]
Switzerland
60
[phone]
[fax]
[email addresses]
B. Respondent
21. Respondent The SCO Group, Inc. is a Delaware corporation, based
in Utah. Respondent's address, as specified in the MTA and JDC for
the purpose of giving notices, is as follows:
[address]
Attention: Mr. Benoy Tamang
[phone]
[fax]
[email]
Respondent later notified Claimant that Mr. Tamang had left the
company and that Mr. Andy Nagle had assumed responsibility for the
UnitedLinux project. Accordingly, Claimant suggests that the ICC
send any notices to Mr. Andy Nagle at the address above, with a
copy to Mr. Darl McBride, Respondent's current CEO.
22. Respondent is the legal successor to Caldera International,
Inc,, which signed the MTA and JDC. The terms The SCO Group, Inc.
and Respondent are used herein to refer to both companies, as
appropriate.
Evidence:
– |
Respondent's Press Release, Caldera to Change Name to The SCO
Group, August 26, 2002 |
Exhibit C-6 |
61
IV. Summary Statement of Facts
A. The Linux Operating System and the "Open Source" General
Public License
23. Linux is a computer operating system. An operating system is
computer software that controls basic operations of the computer.
An operating system works together with application programs that
provide additional functions, such as word processing, e-mail, and
accounting.
24. Unlike proprietary operating systems such as Microsoft Windows,
Linux has been released as open source, meaning that the source
code for Linux is available to the general public.
25. Source code refers to the series of instructions in which a
computer program is written, which can be read, understood, and
modified by an experienced programmer. Source code is subsequently
converted into object code, which is a series of bytes (symbols)
that are required to run the program, but which are effectively
unintelligible to anyone other than the computer.
26. Because proprietary operating systems such as Windows are
normally distributed as object code only, users cannot read or
modify the source code for proprietary operating systems. Moreover,
proprietary operating systems are normally distributed with
restrictive licenses that prohibit users from modifying the
code.
27. Linus Torvalds, a student at the University of Helsinki,
developed the earliest version of the Linux kernel in 1991. The
kernel provides certain core functions of an operating system
related to control and management of the Central Processing Unit or
CPU (the chip at the heart of the computer) and other computer
hardware (e.g., disk drives, monitor, keyboard, and printers);
control and management of computer memory (RAM); and control and
management of files used by the computer.
28. In addition to the kernel, a computer operating system generally
includes software related to other functions, such as the
Installation, testing, and use of the operating system. The Linux
kernel has been combined with other software to create what is
commonly referred to as the Linux operating system.
62
29. All versions of the Linux kernel have been released under the
General Public License (the GPL) for at least the past 13 years.
The GPL is a widely used open source license published by the GNU
Project, whose principal sponsor is the Free Software Foundation. A
copy of the General Public License that is included with the Linux
kernel is submitted herewith as Exhibit C-7.
Evidence:
– |
GNU General Public License, Version 2 |
Exhibit C-7 |
30. As explained in the preamble, the GPL takes a very different
approach than that of restrictive, proprietary licenses:
"The licenses for most software are designed to take away
your freedom to share and change it. By contrast, the GNU General
Public License is intended to guarantee your freedom to share and
change free software -- to make sure that the software is free for all
Its users."
(Exhibit C-7, Preamble, page 1)
31. The GPL authorizes any third party to distribute modified
versions of a computer program subject to the GPL, but only if such
modified program is "licensed as a whole at no charge to all
third parties under the terms of this License" (Section 2(b)).
In addition, the GPL requires the source code for any modified
program to be made available to the public, "for a charge no
more than [the] cost of physically performing source
distribution" (Section 3(b)).
32. Publication of the Linux kernel under the GPL effectively laid
the foundation for the worldwide success of Linux, as it allowed
anyone to use and modify the source code, but only on the condition
that any distributed modifications were made freely available under
the same conditions.
33. Numerous individuals and companies around the world have
contributed code to the Linux operating system as open source under
the GPL. As a result, Linux has evolved into a viable alternative
to proprietary operating systems such as Microsoft Windows.
34. The Linux open source model offers several important benefits to
users. First, the existence of competitive open source alternatives
to proprietary operating
63
systems gives users more options, and hence more bargaining
leverage in dealing with vendors.
35. Second, because the GPL requires any published modifications to
be made freely available to the public, no individual or company
has exclusive, proprietary rights to the Linux kernel or to other
Linux software that is covered by the GPL. Thus, unlike proprietary
operating systems, Linux is not under the control of a single
company or individual.
36. Third, the open source policy empowers the user, by enabling the
user to read and modify the source code. This is particularly
important for users such as governments, who can check open source
software for possible security flaws and modify the software
without the permission or involvement of the software vendor.
Evidence:
– |
The Economist, Microsoft at the power point, September 11,
2003 |
Exhibit C-8 |
37. Fourth, because the Linux source code is freely available,
patches that enhance or add features are frequently created by
developers around the world and then made available to the public
through the Internet.
38. Several companies have built businesses around the development,
distribution and support of Linux and associated programs. One such
company is Claimant, which was founded in 1993 and acquired by
Novell in 2004. Linux vendors focus on providing services that go
beyond the publicly available Linux operating system, such as
additional software and technical support,
39. Although all versions of Linux include certain common functions
and features, the Linux product (also called "distribution")
provided by one company may vary from another company's
distribution. For example, a particular distribution may include
additional language support, other additional functions, and
additional application programs that are packaged with the
operating system. Linux distributions thus come in different
flavors. This lack of standardization was perceived as one
hindrance to the broader adoption of Linux.
64
B. The Contracts at Issue
40. To promote the adoption of Linux, Claimant, Respondent and two
other Linux vendors (Conectiva, Inc. and Turbolinux, Inc.) agreed
in May 2002 to develop a standard version of Linux called
"UnitedLinux". The four UnitedLinux members were based in four
different countries from four different continents, thus providing
global coverage: Germany (SUSE), the U.S. (SCO), Brazil
(Conectiva), and Japan (Turbolinux).
41. The purpose of the UnitedLinux project was
(i) to develop a standard version of Linux containing those Linux
components and features set forth in the JDC;
(ii) to encourage each member to include UnitedLinux technology In
their own Linux products, to be promoted under the common
UnitedLinux brand;
(iii) to encourage widespread adoption of UnitedLinux as the standard
for the information technology industry, through the jointly formed
and controlled UnitedLinux LLC (the LLC); and
(iv) to have the LLC own and license to the members all IP rights the
members may have in the UnitedLinux technology for the members'
independent inclusion in, and marketing of, their own Linux
products.
42. The Preamble of the MTA describes this purpose as follows:
REDACTED
65
REDACTED
43. Pursuant to this agreed purpose, each of the members was free to
use the UnitedLinux technology in its own Linux products, which
would hopefully gain widespread industry acceptance through the
successful, though independent, exploitation of the jointly
developed software by each of the members.
44. Thus, the UnitedLinux members agreed to pool their resources for
the mutual benefit of all members. This was particularly important
because at that time, in 2002, the Linux market was dominated by
Red Hat, a U.S. based Linux vendor that was not a member of
UnitedLinux. By combining their respective expertise, intellectual
property, and other resources to jointly develop and promote
UnitedLinux, the UnitedLinux members sought to achieve greater
market recognition than they could obtain through separate
marketing of their separate Linux distributions.
45. Consistent with this purpose, the MTA and JDC made clear that
each member was entitled to distribute its own Linux products free
from claims that any of the other members had any proprietary
rights in the UnitedLinux Software as used in the members' Linux
products.
46. In particular, the UnitedLinux members agreed that each member
would have an irrevocable, perpetual, and worldwide license to use
and unlimitedly exploit any intellectual property rights of the
other members in the UnitedLinux Software, which would be
transferred to the LLC for this very purpose. Thus, the MTA and JDC
contain identical provisions in Sections 3.2.2 and 8.2,
respectively, stating that:
66
47. REDACTED
48. REDACTED
49. REDACTED
67
50. REDACTED
51. REDACTED
52. REDACTED
C. The Development and Release of UnitedLinux 1.0
53. REDACTED
54. REDACTED
68
55. REDACTED
56. REDACTED
57. The UnitedLinux project proceeded on schedule. UnitedLinux
Version 1.0 was released to the public in November 2002, or less
than six months after the contracts were signed in May 2002. The
UnitedLinux press release stated:
"UnitedLinux is the result of an industry initiative to
streamline Linux development and certification around a global,
uniform distribution of Linux. Founding companies of UnitedLinux
are Linux industry leaders Conectiva S.A., The SCO Group (NASDAQ:
SCOX), SuSE Linux AG, and Turbolinux, Inc. UnitedLinux Version 1.0
is the engine that powers products to be sold by the four
companies, each with its own local language support, value-add[ed]
features, and pricing. "
Evidence:
– |
UnitedLinux Press Release, UnitedLinux Releases Version 1.0,
November 19, 2002 |
Exhibit C-9 |
D. Respondent's Support for UnitedLinux and Release of SCO
Linux 4.0, "Powered by United Linux"
Respondent was initially a strong supporter of UnitedLinux and
the open source model associated therewith. For example, Ransom
Love, then the Chairman and CEO of Respondent (then called
"Caldera" announced in May 2002 that:
"Caldera sees the formation of UnitedLinux as a tremendous
benefit to the industry, to our customers, to our 16,000-member
reseller
69
channel, and to our IHV and ISV partners. Linux and Open
Source have already changed the way software Is developed in the
new online world. UnitedLinux now offers a viable business model
and creates a unified environment that will attract many more
global business solutions to Linux enabling far greater adoption
and use. Caldera plans to make Linux not just an alternative OS,
but the dominant choice for businesses worldwide who are wanting to
take advantage of the benefits of online services."
Evidence:
– |
UnitedLinux Press Release, Caldera, Conectiva, SuSE, Turbolinux
Partner To Create UnitedLinux, And Produce A Uniform Version Of
Linux For Business, May 30, 2002 |
Exhibit C-10 |
59. Darl McBride, Respondent's current CEO, confirmed upon his
appointment in June 2002 that "UnitedLinux will be critical to
the success of [Respondent]" and that Respondent sought to make
"UnitedLinux a standard in our industry".
Evidence:
– |
Respondent's Press Release, Caldera Names Darl McBride as New
CEO, June 27, 2002 |
Exhibit C-11 |
60. In November 2002, Respondent proudly announced the release of
SCO Linux 4.0, "powered by UnitedLinux". Respondent
emphasized that:
"SCO Linux 4.0 is based on UnitedLinux 1.0, the core
standards-based Linux operating system co-developed in an industry
initiative to streamline Linux development and certification around
a global, uniform distribution of Linux."
Respondent further stated that UnitedLinux is
"an enterprise-class, industry standard Linux operating
system", which "provides a Single, Uniform Platform
for application development, certification and deployment, and
allows Linux vendors, Independent Software Vendors (ISVs) and
Independent Hardware Vendors (IHVs) to support a single Linux
offering rather than many different versions" (emphasis in the
original).
70
Evidence:
– |
Respondent's Press Release, SCO Unveils SCO Linux 4, Powered by
UnitedLinux, November 19, 2002 |
Exhibit C-12 |
61. UnitedLinux 1.0 included a modified form of Linux kernel version
2.4.19, which was subject to the GPL. Thus, Respondent's November
2002 release of its product "powered by UnitedLinux 1.0"
triggered Respondent's obligation under the MTA and JDC to make the
source code for the modified Linux kernel freely available to the
public under the terms of the GPL.
62. Also in November 2002, Claimant announced its release of SUSE
Linux, "[b]ased on the joint industry standard, UnitedLinux
1.0".
Evidence:
– |
Claimant's Press Release, SUSE LINUX Unveils the Next
Generation of SUSE Linux Enterprise Server, November 19, 2002 |
Exhibit C-13 |
E. Respondent's Sudden Change in Position and Assertion of
Claims Against Linux
63. Although Respondent continued to distribute its Linux product
for a number of months, Respondent suddenly changed its position
and began attacking the Linux operating system and the UnitedLinux
project.
64. In March 2003, Respondent filed a lawsuit in the U.S. against
IBM, alleging that (a) Respondent owned proprietary rights to the
UNIX operating system; and (b) IBM had infringed on these rights by
contributing UNIX code, methods, and concepts to the Linux
operating system. Respondent initially asserted claims for
misappropriation of trade secrets and unfair competition (as well
as other theories), and later added a claim for copyright
infringement. Respondent has demanded over USD 1 billion in
damages.
65. Even after suing IBM in March 2003, Respondent continued to
market and distribute SCO Linux 4.0, "powered by
UnitedLinux". Indeed, in April 2003, Respondent announced the
release of SCO Linux Server 4.0 for the Intel Itanium 64-bit
processor, which included the base UnitedLinux operating
system.
Evidence:
– |
Respondent's Press Release, SCO Ships SCO Linux Server 4.0 for
the Itanium Processor Family, April 15, 2003 |
Exhibit C-14 |
71
66. However, in May 2003, Respondent announced that it would cease
distribution of Linux. Respondent asserted that it had only
recently discovered that Linux included code that infringed on
Respondent's alleged proprietary rights, even though Respondent had
been distributing Linux since 2001, and had participated in the
development of UnitedLinux in 2002.
Evidence:
– |
Respondent's Press Release, SCO Suspends Distribution of Linux
Pending Intellectual Property Clarification; Announces Greater
Focus on UNIX and SCOx Strategy, May 14, 2003 |
Exhibit C-15 |
67. Also In May 2003, Respondent sent letters to about 1'500 major
corporations, asserting that portions of the UNIX operating system
had been improperly copied into Linux, and that the use of Linux
infringed Respondent's alleged intellectual property rights in
UNIX.
Evidence:
– |
Respondent's Letter to Novell of May 12, 2003 |
Exhibit C-16 |
68. At the same time that it threatened Linux users, Respondent
stated that it would grant licenses to Respondent's alleged
intellectual property rights in return for payment of royalties,
under a licensing program called "SCOSource". Respondent
sought to undermine confidence in Linux and to persuade users to
take intellectual property licenses from Respondent through a
widely-reported campaign of threats and lawsuits against both Linux
users and vendors.
69. In addition to its USD 1 billion lawsuit against IBM and its
demand letters to 1'500 Linux users, Respondent took the following
actions:
-- Respondent filed a lawsuit against a U.S automobile parts
company, Autozone, in Nevada, asserting that Autozone's adoption of
Linux to run its computer systems infringed Respondent's alleged
copyrights.
-- Respondent filed a lawsuit against DaimlerChrysler, in Michigan,
alleging that DaimlerChrysler had not complied with certification
requirements in its UNIX license when it adopted Linux.
-- Respondent repeatedly asserted in software and information
technology industry magazines and conferences that Respondent would
prevail in its
72
lawsuits and that companies that deployed Linux without taking
SCOSource licenses did so at their legal peril.
70. Respondent's allegations have been vigorously disputed. IBM
denied that any copyrightable UNIX code was included in Linux.
Linux developers made similar denials and called on Respondent to
specify the technical basis for its claims, including the specific
Linux code at issue.
71. Despite widespread requests to identify the specific technical
basis for its claims, Respondent failed to publicly identify the
specific Linux code at issue. Respondent's failure to provide
support for its claims led to litigation in Germany that resulted
in Respondent being enjoined from asserting that Linux violated
Respondent's intellectual property rights.
Evidence:
– |
Computerworld Article, SCO fined USD 10,800 in Germany for
Linux claims, September 3, 2003 |
Exhibit C-17 |
F. Respondent's Threats Against Claimant and Copyright
Infringement Claim Based on Novell's Distribution of SUSE
Linux
72. Respondent's campaign targeted at Linux was a direct threat to
Claimant, whose business was based on Linux. Claimant responded by
stating that Claimant and its customers were protected against
Respondent's intellectual property claims by virtue of the licenses
granted in the MTA and JDC.
Evidence:
– |
CNET News.com Article, SuSE sheltered by SCO pact, May 5,
2003 |
Exhibit C-18 |
73. Respondent publicly disputed Claimant's position regarding the
contracts. Chris Sontag, Senior Vice President and General Manager
of Respondent's "SCOSource" licensing program, stated:
"Regarding contracts we have with SuSE and UnitedLinux, I
would unequivocally state that there is nothing in those contracts
that provides them with any protection or shelter in the way they
are
73
characterizing this in the press. If I were them, I would not
be making those kinds of statements."
Evidence:
– |
John Blau Interview with Chris Sontag in Computerworld, May 13,
2003 |
Exhibit C-19 |
74. In the same interview, Respondent's Chris Sontag stated that
Respondent had no legal action planned against Claimant "at this
time", but might take action in the future (Exhibit C-19).
75. On January 13, 2004, Novell purchased 100% of the shares of
Claimant. At the same time, Claimant granted an exclusive license
to Novell to all of Claimant's Intellectual property rights,
including any rights under agreements and licenses with other
parties. Claimant's license to Novell included Claimant's rights
under the MTA and JDC,
REDACTED
76. One week after Novell completed its acquisition of Claimant,
Respondent filed a lawsuit against Novell in Utah state court.
Several weeks later, Novell removed the Respondent lawsuit to the
U.S. District Court for the District of Utah, which is the same
court in which Respondent's lawsuit against IBM is pending.
77. Respondent's claims against Novell initially focused on whether
Novell had "slandered" Respondent's alleged title to the
UNIX copyrights by asserting that Novell had not transferred such
copyrights to Respondent. Novell has denied and continues to deny
that it transferred any copyrights to Respondent. Nevertheless,
Respondent recently amended its complaint to add a claim that the
distribution of SUSE Linux infringes Respondent's alleged UNIX
copyrights.
Evidence:
– |
Respondent's Second Amended Complaint, February 3, 2006 |
Exhibit C-20 |
78. The Second Amended Complaint of Respondent (Exhibit C-20)
alleges that:
-- "On November 4, 2003, Novell announced its acquisition of
SuSE Linux, one of the world's leading distributors of Linux. Since
that time, Novell
74
began distributing Linux worldwide." (cf. Respondent's
Second Amended Complaint, para. 46);
-- "Novell has infringed and continues to infringe SCO's
copyrights by copying, reproducing, modifying, sublicensing, and/or
distributing Linux products containing unauthorized contributions
of SCO's copyrighted intellectual property." (cf. Respondent's
Second Amended Complaint, para. 116); and
-- "Novell's unauthorized copying in its use and distribution of
SuSE Linux includes but is not limited to the appropriation of
numerous data structures and algorithms contained in or derived
from SCO's copyrighted material. A partial listing of these data
structures and algorithms is provided at Exhibit B." (cf.
Respondent's Second Amended Complaint, para. 117).
79. Respondent is requesting an award of damages related to Novell's
distribution of SUSE Linux, as well as an injunction prohibiting
Novell from continuing to distribute SUSE Linux.
80. Respondent has remained vague about the specific portions of
SUSE Linux that supposedly infringe Respondent's copyrights.
However, all or virtually all of the allegedly infringing items
identified in Exhibit B to Respondent's Second Amended Complaint
(Exhibit C-20) appear to be part of the Linux kernel that was
included with UnitedLinux. Indeed, Respondent has asserted that the
allegedly improper code is included in any product that includes
the Linux Kernel 2.4 or above.
81. As noted above, the Pre-Existing Technology contributed by
Respondent to UnitedLinux does not involve the Linux kernel. In
contrast, Respondent's infringement claim appears to be limited to
certain items in the Linux kernel included in both UnitedLinux and
SUSE Linux.
82. The MTA and JDC preclude Respondent from asserting infringement
claims against any technology included in the UnitedLinux kernel
for multiple reasons, including: (a) the MTA and JDC divest
Respondent of ownership of any copyrights it may have claimed in
any technology included in the UnitedLinux Software (except for
Pre-Existing Technology, which is not at issue); (b) Claimant has a
broad royalty-free license to use any intellectual property rights
associated
75
with the UnitedLinux technology, including the right to
sublicense such rights to Novell and to end-users; and (c) the MTA
and JDC require the source code for the UnitedLinux kernel to be
made available for free use and distribution under the GPL license
terms.
83. Respondent's new claim in its Second Amended Complaint has
created an actual controversy between Respondent and Claimant, as
the developer of SUSE Linux and licensor of this product to Novell.
On the one hand, Respondent alleges that Novell's distribution of
SUSE Linux infringes Respondent's alleged copyrights. On the other
hand, Claimant's position is that the MTA and JDC bar Respondent
from asserting any copyright infringement claims based on the
distribution of SUSE Linux.
84. Respondent's improper assertion of infringement claims against
SUSE Linux is a breach of the MTA and JDC. Respondent also breached
the MTA by publicly attacking the Linux operating system shortly
after UnitedLinux was released and by withdrawing support for the
UnitedLinux project. By doing so, Respondent impeded the very
purpose of the common UnitedLinux project. Instead of advancing the
enhancement and distribution of Linux as open source software and
joining Claimant and the other partners in increasing their market
shares for the benefit of all the partners and the open source
community at large, Respondent turned against Claimant and the
other partners and is now on a campaign to destroy the formerly
common business.
85. Respondent's claim against Claimant and its exclusive licensee
Novell has caused considerable damage and threatens to cause
further and irreparable damage to Claimant to be further
substantiated.
V. Prayers for Relief
86. It is, therefore, of utmost importance for Claimant that
Respondent is found in breach of the MTA and JDC and, amongst
others, prevented from further interfering with the distribution of
SUSE Linux and that this is done before the Linux business and the
open source project has been damaged even more seriously.
76
87. Claimant has a legal interest In declaratory judgment by the
Arbitral Tribunal and in an order preventing Respondent from
further directly or indirectly interfering with Claimant's
business.
88. Claimant is also entitled to damages in an amount to be
determined.
89. Accordingly, Claimant requests that the Arbitral Tribunal award
the following relief:
-
Declare that Respondent is precluded under the Master
Transaction Agreement (MTA) and the UnitedLinux Joint Development
Contract (JDC) from asserting any copyright infringement claims
related to SUSE Linux;
-
Declare, in particular, that the MTA and JDC divest Respondent
of ownership of any alleged intellectual property rights in any
part of software included in the UnitedLinux Software (other than
Pre-Existing Technology and Enhancements);
-
Order Respondent to refrain from alleging publicly or against
third parties that the use and distribution of SUSE Linux infringes
upon Claimant's copyrights, as precluded by the MTA and JDC;
-
Order Respondent to pay damages in an amount to be determined
for breach of the MTA and JDC by improperly asserting claims
against Claimant and its licensees, and by attacking and
withdrawing support for the UnitedLinux project;
-
Order Respondent to bear all costs of the arbitration
proceeding, including the costs and expenses of the ICC and of the
arbitrators, as well as attorneys' fees, cost of lost executive
time and expert's costs, if any; and
-
Award any further relief that the Tribunal deems necessary to
effectuate the relief requested above.
77
For facts and reasons set out above, we kindly request the
Arbitral Tribunal to uphold Claimant's Prayers for Relief.
Respectfully submitted,
(Signatures of Michael A. Jacobs, Grant L. Kim, Kenneth W.
Brakebill, Georg Rauber, Felix Dasser, and David Rosenthal)
Exhibits as per separate list
78
List of Claimant's Exhibits
In the Arbitration Proceeding of
SuSE Linux GmbH
vs.
The SCO Group, Inc.
Exhibits filed with Respondent's Request for Arbitration
of April 10, 2006
Exhibit C-1 -
Power of Attorney, dated April 7, 2006 Power of Attorney, dated
April 6, 2006
Exhibit C-2 -
Glossary of Special Terms And Abbreviations
Exhibit C-3 -
Master Transaction Agreement, dated May 29, 2002
Exhibit C-4 -
UnitedLinux Joint Development Contract, dated May 29, 2002
Exhibit C-5 -
Excerpts of Commercial Register for SUSE Linux GmbH, dated
October 19 and December 20, 2004, the latter with General
Assembly's resolution attached
Exhibit C-6 -
Respondent's Press Release, Caldera to Change Name to The SCO
Group, August 26, 2002
Exhibit C-7 -
GNU General Public License, Version 2
Exhibit C-8 -
The Economist, Microsoft at the power point, September 11,
2003
Exhibit C-9 -
UnitedLinux Press Release, UnitedLinux Releases Version 1.0,
November 19, 2002
Exhibit C-10 -
UnitedLinux Press Release, Caldera, Conectiva, SuSE, Turbolinux
Partner To Create UnitedLinux, And Produce A Uniform Version Of
Linux For Business, May 30, 2002
79
Exhibit C-11 -
Respondent's Press Release, Caldera Names Darl McBride as New
CEO, June 27, 2002
Exhibit C-12 -
Respondent's Press Release, SCO Unveils SCO Linux 4, Powered by
UnitedLinux, November 19, 2002
Exhibit C-13 -
Claimant's Press Release, SUSE LINUX Unveils the Next
Generation of SUSE Linux Enterprise Server, November 19, 2002
Exhibit C-14 -
Respondent's Press Release, SCO Ships SCO Linux Server 4.0 for
the Itanium Processor Family, April 15, 2003
Exhibit C-15 -
Respondent's Press Release, SCO Suspends Distribution of Linux
Pending Intellectual Property Clarification; Announces Greater
Focus on UNIX and SCOx Strategy, May 14, 2003
Exhibit C-16 -
Respondent's Letter to Novell of May 12, 2003
Exhibit C-17 - Computerworld Article, SCO fined USD 10,800 in Germany for
Linux claims, September 3, 2003
Exhibit C-18 -
CNET News.com Article, SuSE sheltered by SCO pact, May 5,
2003
Exhibit C-19 -
John Blau Interview with Chris Sontag in Computerworld, May 13,
2003
Exhibit C-20 -
Respondent's Second Amended Complaint, February 3, 2006
80
EXHIBIT 7
81
[UNITEDLINUX logo]
FOR IMMEDIATE RELEASE
For additional information:
UnitedLinux
Margot Rodger
[email address]
[phone]
Caldera, Conectiva, SuSE, Turbolinux Partner To Create
UnitedLinux, And Produce A Uniform Version Of Linux For
Business;
Majority of enterprise system and software vendors including AMD,
Borland Software Corporation, Computer Associates, Fujitsu Siemens,
Fujitsu Japan, Hewlett-Packard, IBM, Intel, NEC, Progress Software,
and SAP, support effort to create standard Linux platform.
LINDON, Utah; CURITIBA, Brazil; NUREMBERG, Germany; &
BRISBANE, Calif.; May 30, 2002 -- Linux Industry leaders Caldera
International, Inc. (Nasdaq:CALD), Conectiva S.A., SuSE Linux AG,
and Turbolinux, Inc., today announced the organization of
UnitedLinux, a new initiative that will streamline Linux
development and certification around a global, uniform distribution
of Linux designed for business. UnitedLinux addresses enterprise
customers' need for a standard, business-focused Linux distribution
that is certified to work across hardware and software platforms,
accelerating the adoption of Linux in the enterprise. Under terms
of the agreement, the four companies will collaborate on the
development of one common core Linux operating environment, called
UnitedLinux software. The four partners will each bundle value
added products and services with the UnitedLinux operating system
and the resulting offering will be marketed and sold by each of the
four partners under their own brands.
Nearly every vendor supplying a piece of the technology
infrastructure used by businesses has expressed support for
UnitedLinux, including systems and software vendors AMD, Borland
Software Corporation, Computer Associates, Fujitsu Siemens, Fujitsu
Japan, Hewlett-Packard, IBM, Intel, NEC, Progress Software, and
SAP. Independent hardware and software vendors spend considerable
effort certifying their products and services on individual Linux
distributions to ensure product compatibility for their customers.
UnitedLinux will significantly diminish the number of distributions
that vendors are asked to certify and will provide a true
standards-based Linux operating environment.
Customers Benefit Through Unity
According to research firm IDC, a 2001 survey of 800 North
American and Western European companies found that 40% of the
respondents were either using or testing Linux in their
organizations. UnitedLinux will help further speed enterprise
adoption of Linux by providing businesses with a greater choice in
the number of applications and hardware certified to work on the
uniform version of Linux. Customers will also benefit from the
global sales, localization, education, support and services that
all four UnitedLinux vendors will collectively provide.
The collaboration of the four leading Linux companies will
result in an enterprise Linux offering, which is truly global by
virtue of the companies' ability to provide local language support,
training and professional services, in addition to the support of
strategic partners. UnitedLinux will provide one unified Linux code
base for IBM's complete eServer product line, AMD's current 32-bit
and forthcoming 64-bit AMD Athlon(TM) and AMD Opteron(TM)
processor-based platforms, and Intel's x86 32-bit and Itanium(TM)
processor family platforms. UnitedLinux supports LSB, Li18nux, and
GB18030 standards, as well as enabling installations in English,
German, French, Italian, Japanese, Korean, Portuguese, Spanish,
Simplified Chinese and Traditional Chinese languages.
In addition, UnitedLinux unleashes a massive research and
development organization for Linux in the enterprise. Effectively,
the four companies involved in this process will shift dollars and
resources once allocated to creating and maintaining custom Linux
operating environments and divert them to new R&D on Linux
enterprise software. UnitedLinux is dedicated to bolstering the
enterprise readiness of the platform, but in the same collaborative
spirit from which Linux was founded and continues to flourish.
http://www.unitedlinux.com/en/press/pr053002.html
82
Participation and Availability
While today's announcement outlines the founding members of
UnitedLinux, the initiative is open for additional Linux companies
to participate. The four partners currently plan to each offer
their own server products based on UnitedLinux by the end of 2002.
For additional information on UnitedLinux, contact Caldera,
Conectiva, SuSE or Turbolinux or go to www.unitedlinux.com.
About UnitedLinux
UnitedLinux is a standards-based, worldwide Linux solution targeted
at the business user and developed by Caldera, Conectiva, SuSE, and
Turbolinux. Designed to be an enterprise-class, industry-standard
Linux operating system, UnitedLinux provides a single stable,
uniform platform for application development, certification, and
deployment, and allows Linux vendors, Independent Software Vendors,
Independent Hardware Vendors, and Original Equipment Makers to
support a single high value Linux offering. For more information,
go to www.unitedlinux.com.
ADDENDUM
AMD
AMD looks forward to working with UnitedLinux. Innovating within
open standards is a basic tenet at both AMD and UnitedLinux. The
combination of an enterprise-ready standard Linux, and high-volume,
industry standard 32-bit and 64-bit server platforms from AMD will
provide shared customers with a high-performance platform for
enterprise computing.
— Rich Heye, Vice President Platform and
Infrastructure, AMD
Borland
As a leading provider of Linux development environments, Borland
supports the efforts around UnitedLinux. This organization should
help in making it easier for Borland to offer our technology
running on Linux from more vendors and help to open up new
opportunities and channels for Borland.
— Simon Thornhill, VP and General Manager of
rapid application solutions at Borland
Caldera
Caldera sees the formation of UnitedLinux as a tremendous benefit
to the industry, to our customers, to our 16,000-member reseller
channel, and to our IHV and ISV partners. Linux and Open Source
have already changed the way software is developed in the new
online world. UnitedLinux now offers a viable business model and
creates a unified environment that will attract many more global
business solutions to Linux enabling far greater adoption and use.
Caldera plans to make Linux not just an alternative OS, but the
dominant choice for businesses worldwide who are wanting to take
advantage of the benefits of online services.
— Ransom Love, Chairman and CEO, Caldera
International
Computer Associates
As a company that has demonstrated unmatched commitment to Linux as
an enterprise-computing platform, CA is extremely supportive of the
UnitedLinux initiative. We believe that this broad-based
cooperative effort will further accelerate the embrace of Linux by
customers across all market segments and will enable them to
realize the significant technical and business benefits that Linux
offers in their distributed and mainframe implementations.
— John Pincomb, VP of Marketing at Computer
Associates
Conectiva
UnitedLinux represents the addition of the best qualification of
each of these companies. As they are in different places, they can
add qualifications that each one has developed in order to answer
to the challenges of the local markets, creating a product that
increases the number of answers to the technical demand. It would
be very difficult for an individual company to get such a wide
coverage in so many aspects. In addition, the organization model we
are adopting, an alliance with the cooperation and contribution of
best practices, is in accordance with the cooperative spirit Linux
has wrought.
— Jaques Rosenzvaig, CEO of Conectiva
Free Standards Group
UnitedLinux's commitment to LSB certification is a natural. I look
forward to the further growth of the Linux market acceptance of
open source methodologies and wider certification of Linux
products.
http://www.unitedlinux.com/en/press/pr053002.html
83
— Scott McNeil, Executive Director of the Free
Standards Group
Fujitsu
Linux is one of the most important strategic platforms for Fujitsu,
and we have been actively developing hardware and software
products, services and solutions based on Linux. We welcome
UnitedLinux and commend its efforts to create a common and stable
Linux distribution environment for system vendors like Fujitsu and
business customers as well. Fujitsu is pleased to lend its fullest
support to UnitedLinux's activities.
— Masaharu Kitaoka, General Manager of Linux
Division, Fujitsu Limited.
Fujitsu Siemens Computers
UnitedLinux transforms Linux into a business operating system par
excellence. The level of performance, scalability and availability
will be extraordinary. Combined with our PRIMERGY servers,
UnitedLinux will provide a platform for business-critical computing
solutions.
— Dr. Joseph Reger, Chief Technology Officer
Fujitsu Siemens Computers
HP
As the #1 vendor of Linux solutions and the leading proponent of
standards-based computing, HP believes UnitedLinux represents an
important milestone that will accelerate the use of Linux by
enterprises around the world. Businesses of all sizes that are
deploying Linux now have the additional benefit of this unified
platform.
— Martin Fink, general manager, HP Linux Systems
Division
IBM
The formation of UnitedLinux offers multiple benefits to the
industry, proving yet again that cooperation on standards
simplifies application development and deployment for vendors
thereby providing our mutual customers with new applications more
quickly. Ultimately, UnitedLinux will accelerate Linux adoption in
the industry.
— Steve Solazzo, General Manager, Linux, IBM.
Linux International
Open Source licensing leads to each vendor having the same
functionality in the base system over time. This effort shows
forethought in making that effort a planned, cooperative event.
Rather than spend their money re-engineering the basic underlying
functionalities of reliability, scalability and availability, these
vendors will be able to build a common platform with which to
innovate new features that their customers desire. I wish the old
Unix vendors had learned that lesson.
For many years the analysts have been saying that the
marketplace could not support so many distributions of Linux,
hinting that only one or two might survive. Once again the Linux
community has come back with a unique answer that may prove the
analysts both right and wrong. This bold step should give a strong
base distribution that will satisfy the needs of the software
vendor for consistency and the hardware vendor for support, yet
allow differentiation at the upper levels to meet the needs of
diverse customers.
— Jon "maddog" Hall, Executive Director of Linux
International.
Open Forum Europe
OpenForum Europe was formed to accelerate and broaden the use of
Linux and Open Source Software in business, breaking down the
perceived business blockers that our research has shown may slow
down its adoption by business. The announcement of UnitedLinux is
very welcome, tackling potential duplication of effort and via the
partner collaboration will boost confidence of CIOs in selecting
Linux. UnitedLinux is a future-oriented step that has the full
support of OpenForum Europe.
— Graham Taylor, Programme Director, OpenForum
Europe
NEC
NEC believes that any activities of the UnitedLinux will be useful
for all of us -- Linux users, developers and system integrators --
related to the enterprise systems. NEC welcomes such activities and
will contribute development of future Linux market for
enterprise.
— Chieko Takahashi, Senior Manager of Open Source
Software Solution Center, NEC Solutions, NEC
Progress Software
We are encouraged by the announcement of a UnitedLinux Operating
System and look forward to its first release. We see the
collaboration between Caldera, SuSE, Turbolinux and Conectiva as
being a most effective way of integrating several Linux
distributions into one standard based Linux Operating System that
is specifically targeted
http://www.unitedlinux.com/en/press/pr053002.html
84
for business implementations. This is an essential step in the
evolution of the Linux OS, which will provide notable economical
and technological benefits to business customers and software
companies like Progress.
— Maggie Alexander, Vice President of Product
Planning at Progress Software
SAP
UnitedLinux will assist SAP in extending our Linux reach while
maintaining the clear and simple structure of the distributions and
databases supported by SAP solutions. Throughout the world,
UnitedLinux will help to make SAP solutions on Linux an even more
compelling offering with respect to service, support, reliability
and performance to price ratio.
— SAP AG, Karl-Heinz Hess, Member of the Extended
Executive Board
SuSE Linux AG
UnitedLinux provides our customers a business Linux that can truly
be called the "best of the best". Global accounts will especially
welcome the worldwide availability of one unified product combined
with a set of services delivered either by a local Linux player or
an international acting partner like IBM Global Services.
— Gerhard Burtscher, CEO SuSE Linux AG
Turbolinux
Asia Pacific is one of the fastest growing markets for Linux and
UnitedLinux will only accelerate that rapid growth. Turbolinux has
market leadership in Asia Pacific with major enterprise customers,
hardware and software partners throughout the region, as well as
aiding in China's massive undertaking to select a technology
infrastructure for the entire country. UnitedLinux will benefit
these customers, especially those in the largest enterprises that
use Linux across their global infrastructures. With today's
announcement, there are no credible arguments left against Linux in
the enterprise. Linux will take its deserved place alongside every
other enterprise operating environment.
— Ly-Huong Pham, CEO of Turbolinux
[logos of Conectiva S.A., The SCO Group, SuSE Linux AG, and Turbolinux, Inc.]
http://www.unitedlinux.com/en/press/pr053002.html
85
EXHIBIT 8
86
[UNITEDLINUX logo]
FOR IMMEDIATE RELEASE
For additional information:
UnitedLinux
Margot Benoit
[email address]
[phone]
UnitedLinux Releases Version 1.0
Industry Leading Technology Providers Sponsor Launch Event
LAS VEGAS - Nov. 19, 2002 - Today the UnitedLinux group
announced the release of Version 1.0 of its UnitedLinux product, a
standards-based Linux operating system targeted at the business
user. UnitedLinux is the result of an industry initiative to
streamline Linux development and certification around a global,
uniform distribution of Linux. Founding companies of UnitedLinux
are Linux industry leaders Conectiva S.A., The SCO Group
(NASDAQ:SCOX), SuSE Linux AG, and Turbolinux, Inc. UnitedLinux
Version 1.0 is the engine that powers products to be sold by the
four companies, each with its own local language support, value-add
features, and pricing.
Sponsors of the UnitedLinux 1.0 launch event are HP (NYSE:HPQ)
and IBM (NYSE:IBM). Today's announcement was made during the
UnitedLinux press conference at the COMDEX event in Las Vegas.
"UnitedLinux has successfully reached its first major milestone
by delivering Version 1.0 according to the schedule laid out last
spring when the group was formed," said Paula Hunter, general
manager of UnitedLinux. "Today's launch of UnitedLinux Version 1.0
is a tribute to the collaborative skills and technical expertise of
the four founding companies, as well as to the vision that brought
the UnitedLinux organization into being."
Built on top of a solid and tested foundation, UnitedLinux 1.0
is an enterprise-class operating system with exceptional stability,
scalability and reliability, and its high level of quality has been
previously available only in expensive proprietary operating
systems. Distributed virtually everywhere in the world and
supported by leading global ISVs and IHVs, UnitedLinux Version 1.0
will initially be available in English, Japanese, Simplified
Chinese, Korean, Portuguese, Spanish, Italian, German, French and
Hungarian. UnitedLinux Version 1.0 will have local language and
local time zone support for customers around the world, with access
to a channel of more than
http://www.unitedlinux.com/en/press/pr111902.html
87
16,000 resellers and a global pre- and post-sales support team.
Details of global training and certification programs will be made
public in the near future.
"As the leading provider of industry-standard Linux hardware and
a long time proponent of open-source computing, HP believes in
offering our customers the choice to deploy Linux across the
platforms that best meet their individual computing needs," said
Rick Becker, HP Vice President, Software CTO, Industry Standard
Servers. "With the delivery of UnitedLinux Version 1.0 we are able
to offer our customers, across the world, additional choice and
flexibility, enabling them to deploy the best Linux solution for
their business."
"Customers want to rapidly deploy Linux-based applications to
realize business value, and ISVs want a common, reliable, standards
based platform upon which to build their applications," said Steve
Solazzo, General Manager, Linux, IBM. "Today's delivery of
UnitedLinux Version 1.0, right on schedule, simplifies the tasks
for application providers and customers alike, allowing them to
more rapidly deploy Linux solutions with confidence."
UnitedLinux Version 1.0 incorporates a wide range of features
that enhance its usefulness for enterprise environments. Details
are contained in a UnitedLinux white paper at www.unitedlinux.com.
90
EXHIBIT 9
91
SCO Unveils SCO Linux 4, Powered by UnitedLinux
Stable, Reliable Linux Platform Backed with Guaranteed Support from
Trusted Operating System Vendor
LAS VEGAS — Comdex — November 19, 2002 — The
SCO® Group (SCO)(Nasdaq: SCOX), in coordination with the
UnitedLinux 1.0 launch at Comdex, today announced the release of
SCO Linux 4.0, powered by UnitedLinux. SCO Linux 4.0 is a
high-quality Linux operating system designed for mission-critical
business applications, with guaranteed stability, security and
worldwide support from SCO. SCO Linux 4.0 is based on UnitedLinux
1.0, the core standards-based Linux operating system co-developed
in an industry initiative to streamline Linux development and
certification around a global, uniform distribution of Linux. SCO
Linux 4.0, powered by UnitedLinux provides customers with the base
UnitedLinux operating system as well as the additional software,
support and services from SCO that customers need to successfully
run Linux in business environments.
"SCO understands that for any operating system to be
commercially viable, especially Linux, it needs a well-defined
roadmap from a trusted supplier, who is committed to and capable of
supporting it," said Andy Nagle, director of SCO Linux products.
"SCO is uniquely qualified to make the UnitedLinux platform viable
for business because of its proven track record in successfully
building, deploying and supporting stable operating platforms for
more than 23 years. SCO Linux 4.0 is built upon SCO's traditional
combination of top OS platform technology, and support and service
features that customers can rely on to support critical business
environments."
"Because Linux is built on ideas and components from so many
parties and is so widely distributed, the issue of support and
reliability is still a key concern of customer and vendors," said
Judy Chavis, worldwide Linux director, HP industry standard
servers. "Built on a secure set of unified LSB compliant standards
by UnitedLinux and with full support offerings from SCO, SCO 4.0
offers our customers another strong Linux platform choice for their
worldwide Linux deployments."
"For hardware and software vendors, it has become an
increasingly difficult task to certify their products across the
many distributions of Linux. SCO Linux 4.0, powered by UnitedLinux
can help vendors overcome that obstacle by providing widespread
application support across the base of UnitedLinux distributions,"
said Bill Claybrook, Research Director for Linux and Unix at
Aberdeen Group. "This in turn benefits IT departments by providing
them with greater choice and support as they deploy Linux."
SCO Linux 4.0 is an ideal platform to support small to medium
businesses and replicated branch sites such as retail store
operations, hotel chains and banks. In these environments,
operational efficiency and flexibility to respond to new customer
demands are essential. SCO Linux 4.0 provides these qualities with
the support and experience of a trusted supplier.
SCO Linux 4.0 Features and Support
SCO Linux 4.0, powered by UnitedLinux adds several features and
support services:
-
As an enterprise-class, industry-standard Linux operating
system, UnitedLinux provides a Single, Uniform Platform for
application development, certification and deployment, and allows
Linux vendors, Independent Software Vendors (ISVs) and Independent
Hardware Vendors (IHVs) to support a single Linux offering rather
than many different versions. SCO offers certification services
that will be accepted as support across all distributions of the
"powered by UnitedLinux" family.
-
Stability with SCO's commitment to operating system quality and
continuous operating system uptime, worldwide support and 12-18
month release cycles. This stable, predictable maintenance and
support schedule makes SCO Linux 4.0 a smart choice for business IT
needs.
-
Award-winning Support Services are available from SCO for tasks
including install, configuration support and 24x7 emergency
response. SCO has a presence in more than 82 countries and can
provide local language support worldwide. SCO's dedicated
engineering services organization provides experienced support for
UNIX, all other Linux platforms powered by UnitedLinux, as well as
all RPM-based Linux distributions.
-
Maintenance is guaranteed with every copy of SCO Linux 4.0. Each
release of SCO Linux will be maintained
92
for a minimum of two years, and SCO has a dedicated team of
escalations engineers to work on fixes for the UnitedLinux
platform. Maintenance includes notification of security patches and
other critical upgrade information.
-
Customized Linux Solutions are available through SCO's channel
of more than 16,000 resellers. SCO's partners and resellers are
willing to partner with OEMs to sell SCO-based solutions. SCO can
incorporate the support of UnitedLinux into existing Engineering
Services agreements providing a one-stop-shop for OEM customers
requiring representation with SCO and the UnitedLinux development
teams.
-
Certified Training on UnitedLinux is available from SCO and SCO
authorized education partners using award-winning SCO education
materials.
To read what the industry is saying about SCO Linux, please
visit www.sco.com/company/press/quotes/scolinux.html.
Pricing and Availability
SCO Linux 4.0 is available today in four different editions:
SCO Linux 4.0 Server, powered by UnitedLinux Base
Edition--$599
SCO Linux 4.0 Server, powered by UnitedLinux Classic
Edition--$699
-
Includes unlimited installation and configuration technical
support incidents via phone, Web or email for one year; SCO Update
Service; five business hour response; designated technical support
contacts; and Online Service Manager which includes access to
current product technical articles and patches, ability to submit
service requests online, and online support activity and status
SCO Linux 4.0 Server, powered by UnitedLinux Business
Edition--$1249
SCO Linux 4.0 Server, powered by UnitedLinux Enterprise
Edition--$2199
-
Includes unlimited technical support incidents via phone, Web or
email for one year; SCO Update Service; one business hour response
during regular business hours; designated technical support
contacts; 24x7 after-hours emergency service telephone support;
Administrative Account Manager; Office Service Manager (same access
as Classic Edition)
About SCO
The SCO Group (Nasdaq: SCOX), formerly called Caldera
International, provides "Powerful Choices" for businesses through
its UNIX, Linux and Volution product lines and services. Based in
Lindon, UT, SCO has representation in 82 countries and 16,000+
resellers worldwide. SCO Global Services provides reliable
localized support and services to partners and customers. For more
information on SCO products and services, visit
http://www.sco.com.
SCO and the associated SCO logo are trademarks or registered
trademarks of Caldera International, Inc. in the U.S. and other
countries. UNIX and UnixWare, used under an exclusive license, are
registered trademarks of The Open Group in the United States and
other countries. Linux is a registered trademark of Linus Torvalds.
All other brand or product names are or may be trademarks of, and
are used to identify products or services of, their respective
owners.
93
EXHIBIT 10
94
BW0432 NOV 19,2002 13:05
PACIFIC 16:05 EASTERN
( BW)(CA-SUSE-LINUX) SuSE Linux Unveils the Next Generation
of SuSE Linux Enterprise Server
Business Editors/High-Tech Writers
OAKLAND, Calif.--(BUSINESS WIRE)--Nov. 19, 2002--
Powered by UnitedLinux, SuSE Linux Enterprise Server 8
Delivers
Efficient, Secure, and Reliable Future-proof Operating System
Available Across All Significant Platforms
SuSE Linux, the international Open Source technology leader and
solutions provider, today announced the next generation of SuSE
Linux Enterprise Server.
Based on the joint industry standard, UnitedLinux 1.0, SuSE
Enterprise Server 8 delivers increased security, scalability,
reliability, standard-compliance, software maintenance, and
support. Available in December, SuSE Linux Enterprise Server 8
combines maximum reliability and performance with an unprecedented
scalability across all significant hardware borders. SuSE Linux
Enterprise Server is also certified and validated for central
enterprise applications such as mySAP.com and IBM DB2.
"IT experts worldwide aim to reduce costs as well as increase
the performance, security and flexibility of their IT
infrastructure," said Boris Nalbach, CTO of SuSE Linux. "SuSE Linux
Enterprise Server is the product of choice for corporate
deployment. It offers decision makers financial planning security
and eases administrators' duties through its technical maturity and
continuous maintenance."
"SuSE has broken new ground with this continuum of enterprise
offerings," said Bob Butler, Business Unit Executive, Linux
Distributors, IBM. "Using a common Linux source code, applications
can quickly span heterogeneous environments -- from micro to
mainframe, small business to Fortune 500. Coupled with full IBM
middleware certification and worldwide IBM Global Services support,
SuSE Linux Enterprise Server 8 will offer customers a compelling
value proposition."
"Based on unified LSB-compliant standards by UnitedLinux, SuSE
Enterprise Server 8 enables HP to offer our customers another
strong Linux platform choice for their enterprise-level Linux
deployments," said Judy Chavis, Worldwide Linux Director, HP
Industry Standard Servers. "Running on industry-standard HP
ProLiant servers or our Itanium 2-based server family, SuSE Linux
Enterprise Server 8 offers customers a secure, reliable, and well
supported Linux platform."
Only Server with Complete Cross-Platform Availability
SuSE Linux Enterprise Server 8 is the only server system
worldwide that boasts a uniform code basis for all significant
hardware platforms. SuSE Linux Enterprise Server 8 is available on
industry-standard HP ProLiant servers and HP Itanium 2-based
servers for 32-bit and 64-bit Intel platforms, respectively. In
addition, SuSE Linux Enterprise is available on AMD 32-bit and
64-bit processors, Fujitsu Siemens Primergy servers and the entire
IBM eServer series (xSeries, iSeries, pSeries, zSeries), making it
the perfect platform for consolidating heterogeneous server
structures and providing significantly reduced system
administration costs.
SuSE Linux Enterprise Server 8 delivers powerful and mature
tools for all mission-critical server applications, such as file,
print, Web, and security services. In addition, it is highly
suitable as a server for applications and middleware solutions such
as databases, e-commerce, and storage, as well as for clustering
and ThinClient systems.
Unique: The SuSE Linux Maintenance Program Expands
95
A new expanded portfolio of system maintenance and support
services ensures that businesses get qualified assistance from SuSE
for the running system. Installation support is now valid for the
entire maintenance term. In the SuSE Linux Maintenance Web, users
can access well-documented fixes, patches, and updates, ensuring
optimum system availability. Various support services specifically
designed for SuSE Linux Enterprise Server 8 are available at fixed
rates, with guaranteed turnaround times, and around the clock.
Maximum Convenience: Easy Installation and System
Configuration
SuSE Linux Enterprise Server 8 also improves administration and
configuration efficiency with the new installation tool AutoYaST.
AutoYaST enables automated installation of a user-defined SuSE
Linux Enterprise Server configuration in a distributed network,
greatly reducing installation time and administration costs and
guaranteeing a global quality-assured software rollout. Using the
graphical YaST2 frontend in SuSE Linux Enterprise Server 8,
hardware components and server services can comfortably be
configured in the running system. YaST's remote administration by
way of a secure encrypted connection provides security and
efficiency.
Globally Standardized Base Technology: UnitedLinux 1.0
SuSE Linux Enterprise Server 8 is based on the uniform global
Linux business infrastructure, UnitedLinux 1.0. Jointly developed
by Conectiva, SuSE, The SCO Group, and Turbolinux, and supported by
leading hardware and software providers, UnitedLinux 1.0 provides
multiple language support and compliance with the main Linux
standards (LSB, FHS, OpenI18N).
Product Scope and Availability
SuSE Linux Enterprise Server 8 for x86 will be available in
December from SuSE Linux resellers. In addition, other versions of
SuSE Linux Enterprise Server 8 for S/390 and zSeries (31-bit and
64-bit), iSeries, pSeries and for Itanium 2-based servers will be
available in December. SuSE Linux Enterprise Server 8 will also
support AMD's x86 64-bit architecture, which will be available
beginning 2003.
The recommended retail price of US$ 749.00 for SuSE Linux
Enterprise Server 8 for x86 includes four CDs, detailed manuals,
and the SuSE Linux Maintenance Program for one server for 12
months. For the benefit of users of SuSE Linux Enterprise Server 7
who participate in the Maintenance Program, SuSE offers an upgrade
to SuSE Linux Enterprise Server 8 together with the documentation
at the price of US$ 129.00.
For further information, please visit www.suse.com/sles/
About SuSE
SuSE Linux is the international technology leader and solutions
provider in Open Source operating system software. SuSE's unique
expertise in Linux and its largest development team worldwide
dedicated to Open Source software has contributed to the
recognition of SuSE as the most complete Linux solution available
today. SuSE Linux is a privately held company focused entirely on
supporting the Linux community and Open Source development. For
more information, please visit www.suse.com.
Note to Editors: SuSE is a registered trademark of SuSE Linux
AG. Linux is a registered trademark of Linus Torvalds. All other
trademarks mentioned herein are the property of their respective
owners.
--30--kt/sf*
CONTACT: The Terpin Group (for SuSE Linux)
Eunice Kim and Xenia von Wedel, [phone]
[email]
KEYWORD: CALIFORNIA
96
INDUSTRY KEYWORD: SOFTWARE HARDWARE COMPUTERS/ELECTRONICS
SOURCE: SuSE Linux
97
EXHIBIT 11
98
(SCO Letterhead)
May 12, 2003
Mr. Jack L. Messman
Chairman & CEO
Novell, Inc.
[address]
Dear Jack:
SCO holds the rights to the UNIX operating system software
originally licensed by AT&T to approximately 6,000 companies
and institutions worldwide (the "UNIX Licenses"). The vast majority
of UNIX software used in enterprise applications today is a
derivative work of the software originally distributed under our
UNIX Licenses. Like you, we have an obligation to our shareholders
to protect our intellectual property and other valuable rights.
In recent years, a UNIX-like operating system has emerged and
has been distributed in the enterprise marketplace by various
software vendors. This system is called Linux. We believe that
Linux is, in material part, an unauthorized derivative of UNIX.
As you may know, the development process for Linux has differed
substantially from the development process for other enterprise
operating systems. Commercial software is built by carefully
selected and screened teams of programmers working to build
proprietary, secure software. This process is designed to monitor
the security and ownership of intellectual property rights
associated with the code.
By contrast, much of Linux has been built from contributions by
numerous unrelated and unknown software developers, each
contributing a small section of code. There is no mechanism
inherent in the Linux development process to assure that
intellectual property rights, confidentiality or security are
protected. The Linux process does not prevent inclusion of code
that has been stolen outright, or developed by improper use of
proprietary methods and concepts.
Many Linux contributors were originally UNIX developers who had
access to UNIX source code distributed by AT&T and were subject
to confidentiality agreements, including confidentiality of the
methods and concepts involved in software design. We have evidence
that portions of UNIX System V software code have been copied into
Linux and that additional other portions of UNIX System V software
code have been modified and copied into Linux, seemingly for the
purposes of obfuscating their original source.
99
As a consequence of Linux's unrestricted authoring process, it
is not surprising that Linux distributors do not warrant the legal
integrity of the Linux code providers to customers. Therefore legal
liability that may arise from the Linux development process may
also rest with the end user,
We believe that Linux infringes on our UNIX intellectual
property and other rights. We intend to aggressively protect and
enforce these rights. Consistent with this effort, on March 7, we
initiated legal action against IBM For alleged unfair competition
and breach of contract with respect to our UNIX rights. This case
is pending in Utah Federal District Court. As you are aware, this
case has been widely reported and commented upon in the press. If
you would like additional information, a copy of the complaint and
response may be viewed at our web site at
www.sco.com/scosource.
For the reasons explained above, we have also announced the
suspension of our own Linux-related activities until the issues
surrounding Linux intellectual property and the attendant risks are
better understood and properly resolved.
Similar to analogous efforts underway in the music industry, we
are prepared to take all actions necessary to stop the ongoing
violation of our intellectual property or other rights.
SCO's actions may prove unpopular with those who wish to advance
or otherwise benefit from Linux as a free software system for use
in enterprise applications. However, our property and contract
rights are important and valuable, not only to us, but to every
individual and every company whose livelihood depends on the
continued viability of intellectual and intangible property rights
in a digital age.
Yours truly,
THE SCO GROUP
By: (signature of Darl McBride)
Darl McBride
President and CEO
100
EXHIBIT 12
101
SuSE sheltered by SCO pact
By Stephen Shankland
103
EXHIBIT 13
104
ComputerWorld: Q&A: SCO's Chris Sontag on how Unix plus Linux equals
trouble
108
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