Declaration of Scott Nelson - as text

Wednesday, November 03 2004 @ 04:01 AM EST

Contributed by: PJ

Here is the Declaration of Scott Nelson as text, thanks to thpr. It is yet another one of the group of declarations IBM submitted in support of its motion for partial summary judgment on breach of contract claims.

The operative paragraph is this one:

"5. Dynix contains code that was written by Sequent or IBM software engineers (or outside contractors retained by Sequent or IBM) for Dynix and code written by third parties and licensed to Sequent or IBM for inclusion in Dynix." [emphasis added]

IBM is submitting this testimony as evidence that SCO's theory of contract simply can't be right, because it would lead to the illogical conclusion that the third-party owned code that Sequent licensed for use in Dynix somehow also is SCO's to control. That would be an odd result indeed.

IBM calls it more than odd. On page 74 of their memorandum in support [PDF] of their motion, IBM calls it an "absurd and commercially unreasonable result." Under SCO's interpretation, it has the right to control every bit of AIX and Dynix. Not only would that co-opt decades of IBM's work, IBM says it "would also mean that SCO has the right to control code that was written by third parties and licensed to IBM, even if such third parties have no relationship at all with SCO. According to SCO, just because a third party licenses code -- that it expended its own resources developing -- to IBM, and IBM includes such code in AIX or Dynix, SCO gets to dictate forever after the use and disclosure of that third party's code by IBM. That is plainly unreasonable."

So Mr. Nelson's declaration is included because it shows the court that this unreasonable result is not a hypothetical. Should the court find in favor of SCO's interpretation of the license agreement, all that licensed code, under their theory, would become SCO's to control forever. The third parties involved might like to have something to say about that. They didn't license it for use in Dynix with the understanding that they'd lose control of their code from that day forward or that by licensing it to IBM they were somehow also granting SCO rights to control who could do what with their code. In short, the judge is being informed that this decision could have far-reaching results that could upset the industry beyond what is reasonable or just, even if the judge were inclined to find for SCO. Not that it seems likely, but lawyers are supposed to leave no thought or question unanswered, and if they assert, they must prove. This is what I believe this declaration represents. Nothing submitted as a declaration is submitted without purpose, any more than you'd take a chess piece and just put it any old place without thinking about your strategy and goal and the conceivable reactions of your opponent. The law is more complex than chess, of course, because it's a three-party game, with the judge a player too.

IBM, being thorough, also gives the judge some cases that stand for the proposition that absurd results are to be avoided. It may seem funny to have to actually prove with cases that absurdity is not good, but there you are:

"Under New York law, the 'rules of contruction of contracts require, wherever possible, that an agreement should be given a "fair and reasonable interpretation"'. Farrell Lines, Inc. v. City of New York, 281 N.E. 2nd 162, 165 (N.Y. 1972). Thus, '[a] contract should not be interpreted to produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties'. In re Lipper Holdings, LLC, 766 N.Y.S.2d 561, 562 (N.Y. App. Div. 2003) (internal citations omitted); see also Leithton's Inc. v. Century Circuit, Inc., 463 N.Y.S.2d 790, 792 (N.Y. App. Div. 1983) (Fein, J., dissenting)('An unreasonable interpretation or an absurd result is to be avoided.'); Reape v. New York News, Inc., 504 N.Y.S.2d 469, 470 (N.Y. App. Div. 1986) ('[W]here a particular interpretation would lead to an absurd result, the courts can reject such a construction in favor of one which would better accord with the reasonable expectation of the parties.').

Think of the third parties in this picture, Your Honor, IBM is saying. It isn't fair to spring such a result on them. They never agreed to such terms. SCO's interpretation would damage them and produce an absurd and commercially unreasonable result.

When you are doing research on a legal case, you don't go at it without any road map, but you are also looking for things you never thought of before. If you come across a case that dovetails nicely and opens your eyes to another line of reasoning, you follow the thread. So a declaration like this one can come from either route: either someone sitting around brainstorming looked at the code's copyrights or the various license agreements for Dynix (or talked to the manager of the NUMA-Q Transition Engineering team, in this case Mr. Nelson), and found out that some of the code belonged to third parties and was only licensed for use in Dynix. That would be a Eureka moment. Or, someone doing the legal research noticed one of the above cases and said, hmm, I wonder if any of Dynix is licensed from third parties?

Whichever way it was, doing legal research is by far the most fun and creative part of the law, from my perspective. It's like playing jazz.


Alan L. Sullivan (3152)
Todd M. Shaughnessy (6651)
[address, phone, fax]

Evan R. Chesler (admitted pro hac vice)
David R. Marriott (7572)
[address, phone, fax]

Attorneys for Defendant/Counterclaim-Plaintiff
International Business Machines Corporation











Civil No. 2:03CV-0294 DAK

Honorable Dale A. Kimball

Magistrate Judge Brooke C. Wells


I, Scott Nelson, declare as follows:

1. I am employed by International Business Machines Corporation ("IBM"). I am the manager of the NUMA-Q Transition Engineering team.

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 my personal knowledge.

3. I have worked with the Dynix operating system for more than two years. I supervise the team of developers who were and are responsible both for writing code for the Dynix operating system and for providing continued support to our customers on Dynix.

4. Each release of the Dynix operating system consists of millions of lines of source code. For example, the latest versions of the Dynix base operating system and the other layered products that constitute the Dynix operating system together contain approximately 30 million lines of source code.

5. Dynix contains code that was written by Sequent or IBM software engineers (or outside contractors retained by Sequent or IBM) for Dynix and code written by third parties and licensed to Sequent or IBM for inclusion in Dynix.

6. I declare under penalty of perjury that the foregoing is true and correct.

Executed: August 4, 2004.

Beaverton, Oregon

Scott Nelson