SCO Grp v. Novell Inc

Filing 686

MEMORANDUM in Opposition re 651 MOTION in Limine No. 6 to Preclude Reliance on Statements in December 2003 and March 2004 that do not Constitute Factual Assertions of Copyright Ownership filed by Plaintiff SCO Group. (Attachments: # 1 Exhibit 1, # 2 Appendix of Unpublished Cases)(Hatch, Brent)

SCO Grp v. Novell Inc

Doc. 686 Att. 1

EXHIBIT 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION --------------THE SCO GROUP, INC., a Delaware corporation, Plaintiff, VS. NOVELL, INC., a Delaware corporation, Defendant. : : : : : : : CIVIL NO. 2:04CV00139

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VIDEOTAPED DEPOSITION OF CHRISTOPHER M. STONE, a witness called by and on behalf of the Plaintiff, taken pursuant to the applicable provisions of the Federal Rules of Civil Procedure, before Sandra L. Bray, Registered Diplomate Reporter, CSR Number 103593, and Notary Public in and for the Commonwealth of Massachusetts, at the offices of Ropes & Gray, One International Place, Boston, Massachusetts, on Tuesday, February 6, 2007, commencing at 9:51 a.m.

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A. Perhaps the engineering folks at that point, Stewart Nelson. Q. Do you know if Novell licensed UNIX to anyone during your second tenure at Novell? A. No, I don't know. Q. And who might know the answer to that question? A. No idea. It's not a business that I or anyone I was involved with was involved in. We were not licensing UNIX. MR. NORMAND: Ken, you want to take a break, five minutes? MR. BRAKEBILL: That would be great. Yes. THE VIDEOGRAPHER: The time is 10:58 on February 6th, 2007. This is the end of Tape Number 1 of the videotaped deposition of Mr. Christopher Stone. (Recess) THE VIDEOGRAPHER: The time is 11:13 a.m. on February 6th, 2007. This is Tape Number 2 of the videotaped deposition of Mr. Christopher Stone. Q. Mr. Stone, do you know whether in this lawsuit between SCO and Novell Novell is claiming the
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software products currently known as UNIX and UnixWare, the sale of binary and source code licenses to various versions of UNIX and UnixWare, the support of such products and the sale of other products which are directly related to UNIX and UnixWare (collectively, the Business)." Do you see that language? A. Yes. Q. Do you know whether after the APA Santa Cruz was engaged in the business of selling source code licenses for UNIX or UnixWare? A. No. Q. Do you have a view from your licensing experience as to whether Santa Cruz was authorized to do so, to enter into such source code licenses if it did not own the UNIX copyrights? MR. BRAKEBILL: Calls for speculation. Calls for legal conclusion. A. No. Q. And your answer was no? A. No. Q. Mr. Stone, do you recall giving a speech at the Open Source Business Conference in 2004?
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right to money that Sun and Microsoft paid to SCO in connection with the agreements that those companies entered into with SCO in 2003? A. Could you ask that again? Whether -- I'm not quite sure I understood. Q. Do you know whether in this lawsuit Novell is claiming the right to certain monies that SCO received from Sun and Microsoft in connection with agreements that SCO entered into with Sunday and Microsoft in 2003? A. I'm not familiar with it, no. I'm not familiar with it. Q. Do you know anything about those agreements that SCO entered into -A. I've never read those -- seen those agreements, no. Q. -- with Sun? We need to have you let me finish my question for her. A. Sorry. Q. I wanted to ask you a question, Mr. Stone, about the APA. We had reviewed earlier under the recitals Paragraph A, which states -- let me read it into the record, quote, "Seller is engaged in the business of developing a line of

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A. Yes. Q. Do you recall making the following statement in your speech, quote, "Sorry, Darl, again. Al Gore didn't invent the Internet, and you didn't invent Linux or intellectual property law. We still own UNIX. And we believe, that UNIX is not in Linux, and that Linux is a free, and is an open distribution, and should be. And always will be," end quote? A. Yes. Q. I'm going to mark as an exhibit a transcript that we've created of that conversation that really it's for you if you want to refer to it. (Speech Transcript from CNET was marked Exhibit Number 1010 for identification.) MR. NORMAND: This transcript has been marked as Exhibit, I guess, 1010. MR. BRAKEBILL: So this is a document that Boies Schiller created? MR. NORMAND: This is a document we created. We created a transcript from a video feed of the speech that is available on CNET, as I understand it. Q. And the language that I read into the record on

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this transcript, Mr. Stone, is on the last page, Page 5? Who is the Darl to whom you're referring to? A. Darl McBride. Q. And at the time, he was the CEO of SCO? A. Correct. Q. And in the beginning part of the language I read into the record, you say, "Sorry, Darl." Why are you saying sorry to Darl? A. This is in response to claims of the copyright and trademarks issue with respect to UNIX and then Linux. Q. And so why are you saying sorry? A. For exactly those reasons, that Novell per the contract retains the right to the copyrights and trademarks and patents. Q. And you tell Mr. McBride that, "You didn't invent Linux." Do you see that language? A. Yes, I do. Q. And did you believe at that time that Mr. McBride had claimed to invent Linux? A. No, I did not believe that. Q. So you're being sarcastic? A. Absolutely.
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IBM? A. Yes, I was aware of all of that. Q. And did you have occasion to read the contracts that SCO was alleging IBM had breached? A. I never read any agreements between SCO and IBM. Q. So your view of the merits of SCO contract claims against IBM, to the extent you understood it, was not based on any review of the agreements -A. I did not read agreements between SCO and IBM. Q. Did you have a view in 2004 as to the merits of SCO's contract claims against IBM? A. No, only with respect to Novell and Linux. Q. You then say in this language that I read into the record to Mr. McBride that you didn't invent intellectual property law. Do you see that language? A. Yes. Q. Did you claim at the time that Mr. McBride claimed to invent intellectual property law? A. No. I was being sarcastic. Q. And what did you understand Mr. McBride to be claiming with respect to intellectual property law, if anything?
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Q. What did you understand Mr. McBride to be claiming with respect to Linux? A. My understanding, it was very clear that he claimed that because he -- that SCO owned the copyrights, patents, and trademarks to UNIX, they, therefore, owned Linux. Q. And do you still understand that that's what SCO claims? A. Yes. Q. Now, do you have a view as to the merits of that claim, as you understand it? MR. BRAKEBILL: Calls for speculation. A. No. I don't have a particular view to the merits. I will stand -- my view is that -well, my view is basically on the contract. Those are the merits as far as I'm concerned, is that they don't -Q. When you say -A. -- per the contract. Q. I'm sorry. When you say the contract, what do you mean? The APA? A. The APA. Q. Did you understand at this time in 2004 that SCO had asserted breach of contract claims against

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A. That SCO owned the intellectual property to Linux, therefore, Linux, and that was the sarcasm. Q. Did you understand Mr. McBride to be claiming on behalf of SCO certain proprietary rights over material in Linux or proprietary rights over Linux in its entirety? A. I understood Mr. McBride and SCO to be claiming that there was offending code in Linux that was in UNIX. That's what I understand. Q. Okay. So did you understand him to be claiming that or did you understand him to be claiming that SCO owned UNIX and Linux as a whole? A. Both. Q. And is that still your understanding of that claim? A. To this day, yes. Q. You then state in the language I read into the record, quote, "We still own UNIX." Do you see that language? A. Yes, I was referring to copyrights and trademarks and patents. Q. And who is the "we" in that statement? A. Novell.

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Q. So you did not mean to state that Novell owns the business? A. That's correct, that it owns the copyrights, trademarks and patents per the agreement. Q. When you look back on that phrasing, do you think it wasn't particularly careful? MR. BRAKEBILL: Calls for speculation. A. I thought it was fine. Q. I mean, would you say now -- would you characterize your view now of the merits as Novell owns UNIX? A. No. I would add that as a little bit of sarcasm as well, keeping with the context of the rest of the comments, but that the -- it still refers to the fact that Novell owns the copyrights and the trademarks and patents. Q. And why were you making these statements at this time in this context? A. Because this was a big issue and it was discussed and there were questions in the audience and it was on everyone's mind. I couldn't go anywhere without someone asked this question. Q. And what result did you hope to achieve in
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A. People that worked for me, some product managers because it had some product detail in it. It had some directional information about Novell. That's pretty much it. Q. Have you had occasion to discuss the content of your speech with anyone at Novell other than counsel? A. The speech at the conference? Q. Yes. After the speech. A. Oh. Not that I recall. Q. You go on to say in the language I read into the record that, "We believe that UNIX is not in Linux." Do you see that language? A. That is correct. Q. What did you mean in that statement? A. That Linux -- that UNIX is not in Linux, exactly what it means. Q. That there's no source code from UNIX -A. That's correct. Q. -- in the Linux operating system? A. That's correct. Q. What was your basis for making that statement at the time? MR. BRAKEBILL: Object to the extent
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making the statements you made? MR. BRAKEBILL: Foundation. A. I was stating a position. Q. What did you think the reaction to the position that you were stating would be? MR. BRAKEBILL: Calls for speculation. A. Support. Q. Did you know at the time whether anyone from SCO was in the audience? A. I did not know. Q. Is the fact that you expected support for the statement one of the reasons you made the statement? A. No. As I said earlier, I'd been asked this question incessantly. Q. And you are still being asked? A. And I'm still being asked. So just I felt I needed to take a position, so I did. Q. And did you speak with anyone Novell -- anyone at Novell about making such statements before you made them? A. We reviewed my speech, if that's what you're asking. Q. Who reviewed the speech?

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this calls for any attorney-client privileged communications or any information that was learned as a result of the attorney work product doctrine. A. So it's privileged. MR. NORMAND: So you're instructing him not to answer the question? MR. BRAKEBILL: Unless he has any information outside of privileged information, I would instruct him not to answer. A. Privileged. Q. So you hadn't personally undertaken, whether at the direction of counsel or otherwise, to figure out whether there's any UNIX source code in Linux; is that fair to say? A. Privileged. MR. BRAKEBILL: Objection. Q. That was actually phrased in an awful way because if an attorney had asked you to do it, you can't answer it. MR. BRAKEBILL: Which was my objection. A. Right. I think that's his point. Q. And is it still your view today that there is no

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