880 - Filed & Entered: 11/22/2006
Declaration
Docket Text: DECLARATION of Todd M. Shaughnessy (REDACTED VERSION) filed by International Business Machines Corporation. (Attachments: # (1) Exhibit 601# (2) Exhibit 602# (3) Exhibit 603# (4) Exhibit 604# (5) Exhibit 605# (6) Exhibit 606# (7) Exhibit 607# (8) Exhibit 608 # (9) Exhibit 609# (10) Exhibit 610 # (11) Exhibit 611 # (12) Exhibit 612# (13) Exhibit 613# (14) Exhibit 614 # (15) Exhibit 615# (16) Exhibit 616# (17) Exhibit 617# (18) Exhibit 618)(Shaughnessy, Todd)

881 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [777] MOTION for Summary Judgment on IBM's Sixth, Seventh, and Eighth Counterclaims (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

882 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [776] MOTION for Summary Judgment on IBM's Second, Third, Fourth, and Fifth Counterclaims (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

883 - Filed & Entered: 11/22/2006
Memorandum in Opposition to Motion
Docket Text: MEMORANDUM in Opposition re [775] MOTION for Summary Judgment on SCO's Third Cause of Action, For Breach of Contract (REDACTED VERSION) filed by Defendant International Business Machines Corporation. (Shaughnessy, Todd)

As you can see, 880 has quite a few exhibits, and they are additions to the 597 exhibits IBM has already submitted in support of its various summary judgment motions. Whatever isn't there as PDF in the exhibits list is redacted or easily available on the Internet or already in our collection. I'll try to fill in the blanks as I have time.

I got so excited when I saw the deposition of Marc Rochkind, Exhibit 616 of 880, on the list, but it's redacted. Talk about disappointed. Anyway, we certainly will never run out of reading material.

You might want to note Exhibit 608 [PDF], especially those of you who were with us back in the early days of Groklaw. Do you remember the letter we wrote together on the Internet as a group, our letter to SCO? You can find it on the Internet, in Egan Orian's article in The Inquirer, "Groklaw Sends a Dear Darl Letter." Or you can always read it right here on Groklaw, where it was born. It is Exhibit 608.

You will find it referenced in IBM's Redacted Memorandum in Opposition to SCO's Motion for Partial Summary Judgment on IBM's Second, Third, Fourth and Fifth Counterclaims [PDF], on page 13, paragraph 28:

28. At the same time, SCO failed to disclose the particulars of the alleged infringement, leading to fear, uncertainty, and doubt in the marketplace. (Ex. 283 paragraph 108.) Indeed, SCO rebuffed requests by the open source community for evidence of the alleged infringement, which would have permitted a potential work-around (Ex. 480; Ex. 608 at 4), and simultaneously capitalized on the marketplace fear, uncertainty, and doubt by selling licenses for the use of Linux (see, e.g., Ex. 224).

Here's part of what we wrote back in September of 2003:

YOU HAVE SHOWN US NO INFRINGING SOURCE CODE

You have refused to show us, much less prove, any infringing source code. If you showed source code that proved to be infringing, it would be immediately removed. Linus Torvalds, Richard Stallman, and the FSF's attorney, Eben Moglen, have each told you so repeatedly as men of honor. You refuse to let that happen. Why? It appears to us it is because you have no infringing source code to show.

Your most recently filed 10Q shows your UNIX business declining, even as Linux continues to grow in market acceptance. If you are refusing to show the source code to prevent its removal because you wish to charge a perpetual toll, in effect riding on the coattails of the more successful GNU/Linux software, that is a shameful tactic. You cannot compel Linux developers to retain your source code, even if any infringing code existed. An alleged infringement is curable by removing the infringing source code. If you can identify any infringing source code, please do so, prove it is infringing, and let us remove it, because we surely do not want it.

I'm certainly glad now we decided to send that letter. At the time, I wrote that cynics might think it would be about as effective as writing a letter to Santa. But while SCO didn't respond by showing us any infringing code, it turns out to have been worth writing anyway. I live by the motto that it never hurts to give something a try. The other exhibits referenced can be found on our chart of IBM's previous 597 exhibits. 224 is the Declaration of Robert A. Marsh [PDF], dated April 5, 2006. 283 is the Expert Report and Declaration of Robert Willig, dated July 17, 2006 (Under Seal). And 480 is an article by Otis Port, titled "Commentary: Will This Feud Choke the Life Out of Linux?", from BusinessWeek, dated July 7, 2003.

I used to say I'd like to have a share of SCO stock when this trial was over, as a memento. But we have something much better now to remember our collective hard work (but fun!), better because it's a memento we can all share, which feels mighty appropriate. And very, very good.

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