Declarations of Vuksanovich, McDonough, Nelson, Swanson, Kistenberg, Frasure, and Green; & Frasure Deposition

Thursday, October 07 2004 @ 10:14 AM EDT

Contributed by: PJ

Here are the declarations of Stephen D. Vuksanovich, Scott Nelson, Richard A. McDonough III, Robert C. Swanson, Ira Kistenberg, David Frasure, and Geoffrey D. Green, which IBM submitted in support of their motion for partial summary judgment on the breach of contract claims.

They all say essentially the same things:

Significantly, four of them are (or were at relevant time periods) AT&T employees. The unanimity with which they speak seems to pull the rug out from under SCO. How can they ask for intermediate AIX versions and comments to try to trace code from UNIX System V to AIX to Linux, if the end result has no original System V code in it, when everyone who was there negotiating and signing the licensing agreements testifies that IBM and Sequent were free to do as they pleased with their own code, including modifications and derivative code, as long as no System V code remained?

And IBM is quite thorough, answering all the "But what about. . ." footnotes you and I ever thought of: Does the fact that Sequent didn't have the side letter mean they had lesser rights? "No", answers the Declarations chorus. Did the $ echo newsletters mean that only licensees after that date had freedom to use their own code any way they wanted, but those earlier didn't unless they signed a new contract? "No", says the Declarations chorus. Was there a difference between IBM's license terms and Sequent's? "No." Etc. One declarant even tells us that Dynix was partly written by third parties, with the obvious implausible implication that if SCO's interpretation of the license were accurate, it would mean that they assert control not only over Dynix code written by Sequent, but even over code written by outsiders, code merely licensed by Sequent.

It's really devastating to SCO's position. They have tried to undermine the impact of the chorus by picking out one or two, alleging they are not to be believed for one reason or another. But even if you granted them those few, and I personally don't, the rest of the chorus remains, a group of those who were there at the time and have firsthand knowledge, all united in saying that SCO has apparentlly misunderstood the agreements and that SCO's theory of the case doesn't match the meaning of the agreements as these men understood them. I guess it is unsurprising that SCO got confused, if that is the problem, since SCO was not in any way involved in the negotiation or signing of these documents. AT&T was. But, since SCO says they are the successor-in-interest to AT&T, I can't help but ask why they didn't first contact AT&T and ask about the interpretation of the contracts, prior to bringing this action. It seems such a natural first step.

The testimony here is that IBM was told by AT&T that it was free to use, copy, modify, and distribute any code that they themselves wrote, that AT&T did not assert ownership or control over modifications or derivative works prepared by its licensees, except to the extent that the licensed UNIX software product was included in such modifications or derivative works, and that Section 2.01 didn't restrict them at all, except with respect to UNIX System V code. With that being the understanding between IBM and AT&T (and Sequent and AT&T)-- and these AT&T individuals say that is what they told IBM (and Sequent) -- on what basis can SCO claim that IBM (or Sequent) has harmed them or breached their contracts? And if they didn't breach their contracts, then on what basis did SCO "terminate" their licenses? And if they didn't have the right to terminate the licenses, what happens to SCO's claim of copyright infringement post-"termination"? You can see how much is at stake.

It's no wonder SCO frantically begged the court for more time to answer. Where, oh where, can they find rebuttal evidence or anyone to dispute this testimony? From the BSDi case? Not really. That wasn't about System V at all, so the licenses would presumably be quite different. I really can't see what they can possibly say to undermine this testimony, though I await their filing. Unless they can present something that contradicts this effectively, I can't see on what basis the court would grant them further AIX and Dynix code. I could be missing something, but what would the justification be? If the licensees were free to copy, use, distribute and disclose their own code, as long as System V code was not disclosed with it, it doesn't matter how similar or whatever ideas, structures, methods, blah blah are. The licensees are free.

Another thing I noticed. Several of the declarations use the phrase "except as otherwise permitted by the license agreements" when talking about restrictions on licensees' using, copying, distributing or disclosing System V code. I think that refers to the wording in the contract that licensees did not have to protect code, from a trade secret perspective, if it had already been disclosed to the public by entities others than the licensees. So, if there were books printed with the code, and there were, presumably that code would then be free of those restrictions.

We also have the Deposition of David Frasure. In the deposition, you will note three lawyers participating. Scott Gant of Boies Schiller, who participated in the deposition of Otis Wilson ("Where is Dr. Freud when we need him?") and who again represents SCO, but this time IBM is represented not by David Marriott but by Kris Kao of Cravath, Marriott's firm. And David Frasure has his own lawyer there, James Szymanski of Harkins Cunningham. If anyone can do a transcription, that would be lovely. It's a scan of a paper document, and it's quite hard to read, I'm afraid, but it's better than nothing and it is legible.

Here are some samples from the declarations: