Here is the Declaration of Joan Thomas, another declaration in support of IBM's summary judgment motion on the contract claims. She tells the court that AIX includes some items that prove that SCO's claims that all of AIX remains under their control, their interpretation of the contract, make no sense, because AIX includes three types of code that SCO can't reasonably expect to control:
- third-party code licensed by IBM for inclusion in AIX;
- code that was written by IBM software engineers (or outside contractors retained by IBM) for AIX; and
- code written by IBM software engineers (or outside contractors retained by IBM) originally for other software programs but that was later also included in AIX.
The first item on the list is particularly telling. It would be a novel contract, indeed, that would allow SCO to control code written by folks who were not party to the contract and never agreed to such terms. Actually, I don't think it would actually be a contract, since a contract implies a meeting of the minds. And note too that AIX, she testifies, includes code that was written by IBM for other programs first and only later included in AIX. How, then, can SCO claim to have any rights over such code?
SNELL & WILMER, L.L.P.
Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]
CRAVATH, SWAINE & MOORE LLP
Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]
Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
THE SCO GROUP, INC.
JOAN THOMAS IN
SUPPORT OF IBM'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
ON BREACH OF CONTRACT CLAIMS
Civil No. 2:03CV-0294 DAK
Honorable Dale A. Kimball
Magistrate Judge Brooke C. Wells
I, Joan Thomas, declare as follows:
1. I am employed by International Business Machines Corporation ("IBM"), as Program Director, AIX and HPC Program Management and pSeries Software Development Operations.
2. This declaration is submitted in connection with the lawsuit brought by The SCO Group, Inc. ("SCO") against IBM, entitled The SCO Group, Inc. v. International Business Machines Corporation, Civil No. 2:03CV-0294 DAK (D. Utah 2003). I make this declaration based upon personal knowledge.
3. I have worked with the AIX operating system for more than two years. I supervise a team of software developers who are responsible both for writing code for the AIX operating system and for building and preparing for distribution new releases of the AIX operating system.
4. Each release of the AIX operating system consists of millions of lines of source code. For example, AIX 5.2.0 contains approximately 63 million lines of source code.
5. AIX contains code that was written by IBM software engineers (or outside contractors retained by IBM) for AIX, code written by IBM software engineers (or outside contractors retained by IBM) originally for other software programs but that was later also included in AIX, and code written by third parties and licensed to IBM for inclusion in AIX.
6. I declare under penalty of perjury that the foregoing is true and correct.
Executed: August 4, 2004