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| Agreement No. SOFT-2538 --SCO Exhibit D -- "A License for Nothing" |
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Sunday, November 16 2003 @ 07:43 AM EST
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Here is SOFT-2538, the 1998 IBM-Santa Cruz reference software code agreement, attached to SCO's Amended Complaint as Exhibit D.
Amendment X was also bundled with this SOFT-2538 as Exhibit D, for reasons I don't understand and can only guess. Amendment X was signed in 1996. Allan Kim's explanation on sco.iwethey.org is here:
Exhibit D -- Santa Cruz Operation Inc. Reference Source Code Agreement No. SOFT-2538
I find it curious that SCO bundled both Amendment X and SOFT-2538 together as the two documents seem to be independent of each other. Amendment X clearly modified the original agreements back to Exhibit A. As such it seems to apply to the System V source code and documentation listed in excruciating detail in the original contract (Exhibit A). The February 1998 agreement, SOFT-2538, explicitly applies to "reference software products" ordered after the signing of the agreement. Without a list of those orders SOFT-2538 seems to be essentially meaningless -- it states the detailed terms of a license for nothing.
Allan has such a way with words. "The detailed terms of a license for nothing." To orient you further, or disorient you, depending on how you look at it, this is how SCO describes it: 66. In addition, AT&T and IBM have entered into nearly 400 supplemental agreements over the years, including Supplement No. 170 (Supplement No. 170 is attached hereto and incorporated herein as Exhibit D). Supplement No. 170 is the document that specifies the royalty amounts and computer CPUs upon which royalty amounts were due to be paid by IBM.
What is so odd is, I see nothing that identifies this document as No. 170. However, Amendment X does have such a reference, and it fits the SCO description in other respects. Further, I see no reason why IBM, or anyone else, would ever sign such an agreement as this one, because it bars whoever signs it from modifying or preparing derivative works based on the "reference software products" and from reverse engineering it. Further, it was to be used solely for IBM's own business purposes and did not include the right to distribute "to any other party" or to export the code anywhere outside of the US. IBM could get the code for its own use, but this document would seem to preclude having customers. It doesn't say all derivative works belong to SCO; it says you can't make any. So it seems obvious this can't be about System V code, because if it were, then from 1998, IBM would have signed a document that said they couldn't do AIX or license it to anyone or distribute it outside of the US, even if they were allowed to write it. And it gives SCO the right to terminate on 30 days' notice, a time period SCO didn't avail itself of. Why would IBM go from irrevocable and perpetual rights, which they had already paid for, and the right to make derivative works, and to claim the rights to those derivative works as their own so long as no System V code was included, and the right to export to most countries in the world to a contract that took all those rights away? Further, Amendment X was between Novell and IBM and Santa Cruz. This document is between IBM and Santa Cruz only. How then, could it negate or even relate to the 1996 3-way Amendment X? What would be the connection between the two documents, that SCO offers them joined at the hip, so to speak? And it is signed by a woman in NC, at their
Research Triangle Park in Raleigh, unlike any other contract or side letter offered in evidence, all of which I believe were signed by someone at IBM headquarters, with the headquarters NY address. What also stands out is that IBM was offered no indemnification here, so they would have been giving that up too, because they had it under Amendment X. That is correct, folks. The company that is now saying that GPL code is the only code in the world that does not offer indemnification didn't offer it itself in this document. Here's the warranty section: 12.01 SCO warrants that it is empowered to grant the rights granted herein. 12.2 Except as set forth in Section 12.01, SCO (and other developers) make no representations or warranties with regard to REFERENCE SOFTWARE PRODUCTS, expressly or impliedly. By way of example but not of limitation, SCO and other developers make no representations or warranties of merchantability or fitness for any particular purpose, or that the use of any REFERENCE SOFTWARE PRODUCT will not infringe any patent, copyright or trademark.
A 1998 contract. That is not the Middle Ages. Of course, SCO could argue that it wasn't them. The agreement was a contract with oldSCO. Yes. Exactly. They would be right to so argue. This isn't a contract between current SCO and IBM, so unless there is another writing that transferred this and all the rights it specifies, or takes away, to Caldera, now SCO, I really can't understand why they included it in their complaint as an exhibit. I think it must have been added by mistake, pure and simple, on SCO's part. You don't normally append two documents together as one exhibit. Each would be a separately numbered exhibit, so as to avoid confusion. So my vote is that this document was either a mistake on SCO's part or by some stretch a document SCO hoped would be confusing and would make the casual viewer think had taken away the obviously broad rights IBM had already. But even if this document could amend or negate Amendment X and any earlier agreements, it has a clause on confidentiality, including methods and concepts, clause 3:04, which says that IBM's obligations regarding confidentiality don't apply to any portion of the "reference software product" which was no longer a trade secret in 1998, was independently and legally received by IBM from a third party, was already in their possession, or was "independently developed by you with use of the REFERENCE SOFTWARE PRODUCT or SOFTWARE DERIVATIVE." The restrictions would appear, therefore, to apply only to anything outside those perimeters. There is also a clause that gives IBM clean room rights, you might call it, or as Allan Kim calls it, the "I own the contents of my brain" clause: 3.05 - Notwithstanding anything to the contrary, YOU shall have the right to use residual information mentally retained by YOUR employees who in the ordinary course of their work pursuant to this Agreement, retain such information in non-tangible form after having access to REFERENCE SOFTWARE PRODUCT, provided that such employees make no deliberate attempt to preserve such information by reducing it to writing or to otherwise memorialize such information contemporaneously. However, nothing in this paragraph shall affect SCO's rights under patent or copyright laws.
The amended complaint says there are around 400 such agreements. Where are the other 399, I wonder? And exactly who is the person who signed this?
Debra Walton [Update: Cf. LinkedIn in 2009] at Research Triangle Park in Raleigh, NC? And it is clearly a boilerplate document, a kind of order form, between Santa Cruz and "YOU", with blank lines to fill in by the "YOU" party by hand. So it wasn't a negotiated contract so much as a kind of EULA going along with an order of some software "YOU" wanted to license. With a negotiated contract, the secretary or paralegal drawing up the document will type in the names of both parties, and all the parties do with a pen is sign on the dotted line. Why would this document have anything to do with System V code or be related to Amendment X in any way? IBM by this time already had System V code and didn't need to order it again for North Carolina, I wouldn't think. Honestly I have no idea what this agreement was for, and standing on its own, I don't see how anyone can know what it is talking about. What exactly is the source code referenced? 'Tis a puzzlement. It really does seem to have been attached by mistake. However, because SCO put it in the case, here it is as text. Again, we have Scott McKellar to thank for the text version. You might think that it's a waste of time to transcribe and analyze what is probably a mistake. However, if nothing else, this exhibit stands as a monument to SCO's legal skill.
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Agreement Number SOFT-2538
THE SANTA CRUZ OPERATION, INC.
REFERENCE SOURCE CODE AGREEMENT
This Agreement is between THE SANTA CRUZ OPERATION, INC. ("SCO"), a California corporation, having
an office at 400 Encinal Street, Santa Cruz, California 95061-1900, and YOU as indicated in the signature block
of this Agreement, for YOURSELF and on behalf of YOUR SUBSIDIARIES. Subject to the terms and
conditions of this Agreement, SCO will provide YOU the right to acquire REFERENCE SOFTWARE
PRODUCTS. Each such REFERENCE SOFTWARE PRODUCT shall become subject to this Agreement on
acceptance by SCO of an ORDER submitted by YOU and accepted by SCO that identifies the SOURCE
CODE PRODUCT upon which a REFERENCE SOFTWARE PRODUCT is based. Each ORDER made part
hereof shall identify the number of this Agreement and shall include a Product Schedule for the SOURCE
CODE PRODUCT. Any additional terms and conditions set forth in such Product Schedule incorporated into
such ORDER shall also apply with respect to such REFERENCE SOFTWARE PRODUCTS provided that each
such Product Schedule containing such additional terms and conditions is signed by YOUR duly authorized
representative. Additional terms and conditions on YOUR initiated ORDERs in conflict with or modifying the
terms and conditions of this Agreement shall not apply to such ORDER.
This Agreement and its applicable ORDERS set forth the entire agreement and understanding between the
parties as to the subject matter hereof and merges all prior discussions, communications, agreements or
understandings between them with respect to such subject matter. This Agreement shall not be modified
except by a writing signed by authorized representatives of both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives.
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YOU
International Business Machines Corp
(Company Name)
New York
(State incorporation)
3039 Cornwallis Rd
(Address)
Research Triangle Park, NC 27709
(Address)
{signature: Debra P Walton}
(By)
DEBRA P. WALTON
(Print or Type Name)
Contracts Representative
(Title)
2-5-98
(Date) |
THE SANTA CRUZ OPERATION, INC.
By: {illegible signature; Bill something?}
(Name)
MGR LAW & CORP AFFAIRS
(Title)
2-10-98
(Date)
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1. TERM AND TERMINATION
1.01 This Agreement shall become effective on the date of acceptance by SCO. With respect to a
particular REFERENCE SOFTWARE PRODUCT, the duration of LICENSEE's rights shall be as
specified in the Product Schedule associated with the applicable Supplement.
1.02 If YOU fail to fulfill one or more of YOUR material obligations under this Agreement, SCO may,
upon its election and in addition to any other remedies that it may have, at any time terminate all
the rights granted by it hereunder by not less than two (2) month's prior written notice to YOU
specifying any such breach, unless within the period of notice all breaches specified therein shall
have been remedied; upon such termination, YOU shall immediately discontinue use of and return
or destroy all copies of REFERENCE SOFTWARE PRODUCTS covered hereunder.
1.03 Upon thirty (30) days written notice to SCO, YOU may elect to terminate YOUR rights
hereunder. You may elect to acquire more extensive rights under a separate SCO Software Agreement
covering the applicable SCO SOURCE CODE PRODUCTS.
1.04 The termination of this Agreement or YOUR rights hereunder shall not relieve YOU of YOUR
obligations to pay any fee hereunder.
2. GRANT OF RIGHTS
2.01 Subject to the provisions and during the term of this Agreement, SCO grants to YOU a personal,
nontransferable, nonassignable and nonexclusive limited right to use in the United States
REFERENCE SOFTWARE PRODUCTS identified in one or more ORDERS hereto, solely for YOUR
own business purposes and solely on or in conjunction with DESIGNATED CPUs. Such right to use
does not include any right to:
(a) modify such REFERENCE SOFTWARE PRODUCTS or prepare derivative works based on such
REFERENCE SOFTWARE PRODUCTS; or
(b) to distribute, to any other party, REFERENCE SOFTWARE PRODUCTS; or
(c) in the case of object code portions, if any, of REFERENCE SOFTWARE PRODUCTS, to
reverse engineer, reverse compile, disassemble or otherwise attempt to derive the source code
of such portions.
2.02 No right is granted by this Agreement for the use of REFERENCE SOFTWARE PRODUCTS directly
for others, or for any use of REFERENCE SOFTWARE PRODUCTS by others unless such uses are
permitted for the associated SCO SOURCE CODE PRODUCTS in the applicable Product
Schedules for such SCO SOURCE CODE PRODUCTS.
2.03 No right is granted to YOU to allow anyone other than YOUR employees to use REFERENCE
SOFTWARE PRODUCTS unless such uses are permitted by a specific provision in the Product
Schedules for the associated SCO SOURCE CODE PRODUCTS. The term "employees" as used in
this Agreement means both direct and contractors.
3. CONFIDENTIALITY
3.01 SCO shall include the appropriate markings of confidentiality on the REFERENCE SOFTWARE
PRODUCT. As such, YOU shall treat all REFERENCE SOFTWARE PRODUCT or SOFTWARE
DERIVATIVE provided to you under this Agreement in accordance with the terms and conditions of
this Section.
3.02 YOU agree to use the same degree of care as YOU would with similar products of YOUR own, (but
no less than a reasonable degree of care) and to hold all parts of REFERENCE SOFTWARE
PRODUCTS or SOFTWARE DERIVATIVES subject to this Agreement in confidence for SCO and
not make any disclosure of any or all of such REFERENCE SOFTWARE PRODUCTS (Including
methods and concepts utilized therein) to anyone, except to YOUR employees to whom such
disclosure is necessary to the use for which rights are granted hereunder and who are under a
binding obligation to keep such disclosure in confidence.
3.03 YOU shall appropriately notify each employee to whom any such disclosure is made that such
disclosure is made in confidence and shall be kept in confidence by such employee.
3.04 YOUR obligations under this Section shall not apply to a particular portion of the REFERENCE
SOFTWARE PRODUCT which: (i) has become generally available to the public through acts or
omissions not attributable to YOU; (ii) was already lawfully in YOUR possession unburdened by an
obligation of confidentiality owed to SCO, prior to its receipt from SCO; (iii) is received by YOU
independently from a third party who was free to lawfully disclose such information to YOU
without breach of an obligation of confidentiality to SCO; (iv) is required to be disclosed by YOU by
judicial or governmental administrative authority, provided that YOU first notify SCO in a timely
fashion to permit SCO to take appropriate protective measures; or (v) is independently developed
by you with use of the REFERENCE SOFTWARE PRODUCT or SOFTWARE DERIVATIVE.
3.05 Notwithstanding anything to the contrary, YOU shall have the right to use residual information
mentally retained by YOUR employees who in the ordinary course of their work pursuant to this
Agreement, retain such information in non-tangible form after having access to REFERENCE
SOFTWARE PRODUCT, provided that such employees make no deliberate attempt to preserve
such information by reducing it to writing or to otherwise memorialize such information
contemporaneously. However, nothing in this paragraph shall affect SCO's rights under patent or
copyright laws.
4. SOURCE CODE ACQUISITION
Upon payment of the applicable fees set forth in the Product Schedule for a particular REFERENCE
SOFTWARE PRODUCT, YOU may obtain a copy of such REFERENCE SOFTWARE PRODUCT for
limited use hereunder in one of the following ways:
(a) in the case of a SCO SOFTWARE PRODUCT, directly from SCO; or
(b) in the case of a SOFTWARE DERIVATIVE, from another licensee of SCO for the associated SCO
SOURCE CODE PRODUCT who has previously acquired the right, via a SCO Software Agreement,
to provide such SOFTWARE DERIVATIVE to certain SCO licensees via SOURCE CODE
EXCHANGE.
5. COPIES OF REFERENCE SOFTWARE PRODUCTS
YOU may make copies of REFERENCE SOFTWARE PRODUCTS solely for the uses granted hereunder.
Each copy shall contain any copyright notices, proprietary notices or notice giving credit to another
developer, which appear on or in the REFERENCE SOFTWARE PRODUCT being copied or in the
applicable Product Schedule for the associated SCO SOURCE CODE PRODUCT. All YOUR obligations
hereunder with respect to such REFERENCE SOFTWARE PRODUCT shall apply to each copy.
6. EXPORT
YOU will not, without the prior written consent of the REFERENCE SOFTWARE PRODUCT provider,
export, either directly or indirectly, REFERENCE SOFTWARE PRODUCTS covered by this Agreement
to any country outside of the United States. YOU will obtain any and all necessary governmental export
licenses for export or for any disclosure of a REFERENCE SOFTWARE PRODUCT to a foreign national.
7. TRADEMARKS
No right is granted herein to use any trademarks, trade devices, service marks or symbols, or other trade
indicia, and abbreviations, contractions or simulations thereof (collectively "trademarks") owned by, or
used to identify any product or service of, SCO (or a corporate affiliate thereof) or any third party
including any third party who has contributed to any portion of a REFERENCE SOFTWARE PRODUCT.
8. FEES AND TAXES
8.01 The applicable fees specified in Product Schedule(s) included in ORDERS made part hereof shall be
paid to SCO within thirty (30) days of receipt of an invoice from SCO.
8.02 YOU shall pay all taxes, including sales and use taxes (and any related interest or penalty), however
designated, imposed as a result of this Agreement, except any income tax imposed upon SCO by
any governmental entity within the United States (the fifty (50) states and the District of Columbia).
Fees specified here do not include taxes. If SCO is required to collect a tax to be paid by YOU,
YOU shall pay the amount of such tax to SCO on demand.
9. PAYMENTS
9.01 Payments to SCO under this Agreement shall be made payable and sent to:
The Santa Cruz Operation, Inc.
P.O. Box 7745
San Francisco, CA 94120-7745
10. Notices
10.01 Notices and other correspondence with SCO relating to this Agreement shall be sent to:
The Santa Cruz Operation, Inc.
P. O. Box 4
430 Mountain Avenue
Murray Hill, New Jersey 07974-0004
Attention: Law and Corporate Affairs
10.02 Any statement, notice, request or other communication shall be deemed received when personally
delivered, sent by facsimile, or three days after being sent via first-class mail postage pre-paid to
either party at the addresses specified in this Agreement.
11. Audits
YOU agree to keep records of each copy of REFERENCE SOFTWARE PRODUCTS. Such records shall
list the location, person responsible, and manufacturer, model and serial number of DESIGNATED CPUs
such REFERENCE SOFTWARE PRODUCT is installed on. YOU agree to furnish reports detailing the
procedures used to keep such records and the list of DESIGNATED CPUs to SCO upon request. Such
request from SCO shall not be more frequent than annually. Prompt adjustment shall be made to
compensate for any errors or omissions.
12. WARRANTY
12.01 SCO warrants that it is empowered to grant the rights granted herein.
12.2 Except as set forth in Section 12.01, SCO (and other developers) make no
representations or warranties with regard to REFERENCE SOFTWARE PRODUCTS,
expressly or impliedly. By way of example but not of limitation, SCO and other
developers make no representations or warranties of merchantability or fitness for any
particular purpose, or that the use of any REFERENCE SOFTWARE PRODUCT will not
infringe any patent, copyright or trademark. SCO and other developers shall not be
held to any claim by YOU or a third party on account of, or arising from, the use of any
REFERENCE SOFTWARE PRODUCT.
SCO performs a standard virus check on all media the REFERENCE SOFTWARE PRODUCT is
contained on and as such the REFERENCE SOFTWARE PRODUCT is provided to YOU free of any
known virus.
SCO's Law and Corporate Affairs Department (meaning the organization responsible for the
protection of SCO's patents and other intellectual property, and for the response to suits and claims
in connection therewith, has no knowledge of any patents or copyrights which are infringed or may
be infringed, or any trade secrets or other proprietary rights of other parties which are or may be
misappropriated or violated by using, making, copying, licensing or distributing SCO Products
supplied by SCO to OEM hereunder.
13. MISCELLANEOUS PROVISIONS
13.01 Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or
otherwise transferable by YOU and any purported assignment or transfer shall be null and void.
13.02 The construction and performance of this Agreement shall be governed by the substantive laws of
the State of California.
14. DEFINITIONS
14.01 CPU means central processing unit.
14.02 COMPUTER PROGRAM means any instruction or instructions, in source-code or object-code
format, for controlling the operation of a CPU.
14.03 DESIGNATED CPU means any CPU listed as such for a specific SOURCE CODE PRODUCT in an
ORDER under this Agreement. Such listing includes the maker, model number and serial number.
14.04 SCO SOURCE CODE PRODUCT means a SOURCE CODE PRODUCT made commercially
available for license in source code form by SCO through a SCO Software Agreement.
14.05 ORDER means YOUR initiated written request for rights to acquire SOFTWARE DERIVATIVES or
REFERENCE SOFTWARE PRODUCT under the terms and conditions of this Agreement. Such
request may be via a purchase order, order form or some other mutually acceptable ordering
vehicle under which all required ordering information including the applicable fees as specified in a
Product Schedule attached to such ordering vehicle.
14.06 REFERENCE SOFTWARE PRODUCT means a SCO SOURCE CODE PRODUCT or a SOFTWARE
DERIVATIVE of such SCO SOURCE CODE PRODUCT.
14.07 SOFTWARE DERIVATIVE means a third-party furnished derivative work of a SCO SOURCE CODE
PRODUCT, or portion thereof.
14.08 SOURCE CODE PRODUCT means materials such as COMPUTER PROGRAMS, information used
or interpreted by COMPUTER PROGRAMS and documentation relating to the use of COMPUTER
PROGRAMS. Certain SOURCE CODE PRODUCTS identified in an ORDER hereto may contain
materials prepared by other developers.
14.09 SOURCE CODE EXCHANGE means the distribution of a SOFTWARE DERIVATIVE from a third-party
licensee of SCO to YOU upon verification by SCO, at the request of such third party licensee,
of the equivalent SCO SOURCE CODE PRODUCT rights-to-use identified in an ORDER hereto.
Such verification will be requested by such third-party licensee.
14.10 SUBSIDIARY of a company means a corporation or other legal entity (i) the majority of whose
shares or other securities entitled to vote for election of directors (or other managing authority) is
now or hereafter controlled by such company either directly or indirectly; or (ii) the majority of the
equity interest in which is now or hereafter owned and controlled by such company either directly
or indirectly; but any such corporation or other legal entity shall be deemed to be a SUBSIDIARY of
such company only so long as such control (or such ownership and control, as the case may be).
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| Authored by: Thomas Frayne on Tuesday, November 11 2003 @ 01:39 AM EST |
This agreement is between IBM and original SCO, dated 2/10/98. It seems to be a
template, to be activated for a particular software reference product by an
ORDER, so we can't really tell what this agreement is about until we see an
order.
Since Amendment X was in 1985, and seems to be the last word about System V, I
don't see how this agreement is related to SCO's suit.[ Reply to This | # ]
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| Authored by: rand on Tuesday, November 11 2003 @ 01:54 AM EST |
12.2 paragraph 3 -- right paren ')' after 'in connection therewith'
---
#include "IANAL.h"[ Reply to This | # ]
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| Authored by: fjaffe on Tuesday, November 11 2003 @ 06:42 AM EST |
paragraph 8.02 ...fifty (50) states... appears as "fify"
paragraph 14.10 - can't tell if this is a problem without the PDF, but the
numbering is (1), (ii), which is probably not correct[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 09:00 AM EST |
In 1998 also the Monterey project started. So it may be related to that
project.
It may be a pre-project agreement. I can imagine that IBM wanted to know the
state of the art of the SCO stuff before they went into a project with them.
This looks like a agreement for that.
Hans[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 09:07 AM EST |
Maybe this is IBM getting access to Unixware source code (for Monterrey?)
What this has to do with System V, I don't know
It may might be that it has been deliberately or erroneously mixed up with
Amendment X, which is clearly a different matter
[ Reply to This | # ]
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| Authored by: Beyonder on Sunday, November 16 2003 @ 09:49 AM EST |
This is obviously more of SCOs FUD machine at work.
Remember the old saying-
if you can't dazzle them with dexterity, baffle them with B-S!
they threw this document in to confuse people (lawyers, and judges included),
it's also a really nifty way to waste a lot of time! Remember SCOs key purpose
is to pump and dump stock, so the more time they can squeeze by confusing the
heck out of everyone, the better! I can see them trying to drag this, even if
the judge puts them on the spot. oy vey, this could take months if they want it
to... I suppose. But probably sooner rather than later someones gonna get pissed
off (IBM already is I think) and crush SCO like the bug they are...
I thought of something else too as I was reading this (and making my brain
hurt), whatever the case may be and whatever this agreement is about, if it's
even valid, there's one thing that you can be absolutely sure of...
IBM's lawyers aren't slouches (sp?), I'm very sure they've reviewed this,
and by now probably know exactly what this is about, and where it came from.
IBMs lawyers are top-notch, they don't mess around, they'll tear apart any SCO
nonsense like this and feed it to SCO for breakfast...
I think it'd be so funny if IBM submitted a document saying that this was an
old agreement with the oldSCO having to do with some odd plan for IBM to build
PCs with SCOs product on them, hrm, webtv, something, who knows, I'm sure
we'll found out soon... Monterey sounds like a pretty good target for something
like this.
Watch the next while for something from IBM crushing more of SCOs nonsense. If
there's anything we can count on in this mess, its that IBM's right there on
top of things, and can always provide for any contingency.
new tagline-
"IBM- Tearing apart the SCO FUD machine one document at a time..."
(could replace document with lawyer)... bah, so it ain't that good... what do
you expect with only 3hrs sleep? :)[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 10:26 AM EST |
Okay, if I understand this correctly, SCO has one exhibit that runs two
documents together as if they were one.
There are three main theories:
(a) It's stupid error
(b) It's a deliberate error
(c) SCO really believe they are supposed to be run together
But how can we tell which theory is correct?
Q1. I find (c) slightly implausible, as it's fairly obvious that they are two
documents.
Q2. My answer - compare what they filed in March and what they filed in June.
Why? If they made the same error on both occassions, it would seem to make (a) a
lot less likely, no?
While, this isn't conclusive, if they made the same error on both occassions,
I'd say (b) is the likeliest. My question then is: Did they make the same
error twice.[ Reply to This | # ]
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| Authored by: Bob Miller on Sunday, November 16 2003 @ 10:26 AM EST |
PJ wrote:
I see no reason why IBM, or anyone else, would ever sign
such an
agreement as this one, because it bars whoever signs it from
modifying
or preparing derivative works based on the "reference
software
products" and from reverse engineering it. Further, it was to be
used
solely for IBM's own business purposes and did not include the right
to
distribute "to any other party" or to export the code anywhere
outside of the
US. IBM could get the code for its own use, but this
document would seem to
preclude having customers. It doesn't say all
derivative works belong to SCO; it
says you can't make any. So it
seems obvious this can't be about System V code,
because if it were,
then from 1998, IBM would have signed a document that said
they
couldn't do AIX or license it to anyone or distribute it outside of
the US,
even if they were allowed to write it.
This isn't as odd as it
seems. It's a license for a reference release
(or REFERENCE SOFTWARE PRODUCT).
They're fairly common in the
closed-source world. One company provides a
particular version of a
software package and lets the other company use it for
reference
purposes only. "You can look at this, but don't base products on
it
(and don't share it with anyone, etc.)" The providing company (old
SCO in
this case) might do that because the code isn't fully debugged
yet, or because
the receiving company (IBM) wants to look at and work
with the code in detail
before they pay for a full contract.
I agree, though. This license is
useless if we don't know what software
it applies to. I'd bet it doesn't apply
to SVRx.
DISCLAIMER: My postings may include questions about the law
or its
practice or interpretation. Although I am not a lawyer, these
questions
do not signal intent to enter into a client-attorney
relationship with any
lawyer(s) who answer them. All answers and
subsequent discussion shall be
regarded solely as for the edification of myself and
other readers. They will
not be construed as legal advice. Hi,
Darron!
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 10:40 AM EST |
How then, could it negate or even relatee to the 1996 3-way Amendment X?
----
Small typo in paragraph 4 (I'm not counting the quoted material as paragraphs).
Might want to nix the extra 'e' on 'relate' :)[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 10:43 AM EST |
Wow and maybe ouch for IBM...
Debra Walton is an employee at IBM.
She can also be seen as an "agent" (actual, apparent or ostensible)
of IBM (in the eyes of SCO)!
If she just signed this to take possesion of something due to SCO saying she
needed to (kinda off hand) - like folks sign forms to take delivery of many
things (without reading or understanding that they are signing) the form...
then, ouch.
What does this person do at IBM that they would just sign something with
language like this?
WHO is Debra Walton, and what were her duties at the time?
Was she just a receiving clerk in an IBM shipping and receiving department who
was heading out the door to pick up her kids at day care and was told by a
delivery person that he needed this signed before he could leave the package -
so she hurriedly signed this without any thought as to what she was signing? OR
was she a manager? Who is she. What kind of "agent" status did she
have "in SCO's eyes"????
Pretty sleeeezzzzy to put this language on a reciving document. If it was
Monetray related and the software talked about in the document is not defined
then IBM may have missed a bullet. What is the software that the document talks
about?[ Reply to This | # ]
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| Authored by: Glenn on Sunday, November 16 2003 @ 10:47 AM EST |
Is it any wonder that SCOG is desperatly doing everything that it can to keep
from having to provide any meaningful documents to IBM and Red Hat? They started
the SCO-Source train down the traks at full speed with people at the controls
who are trying to talk the train into stopping. But the end of the tracks are
inexorably approaching and the SCOG train with all the analyst and investor cars
dutifully following saying "Aint't SCOG great!".
I'm still wondering if Mickey Soft isn't really in the the caboose.
Once that happens, we all can go to see our respective shrinks who will maybe
be able to help us with our obsession (after all, three A.M. in the morning?).
Glenn[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 11:27 AM EST |
As a programer I read SCO (SOURCE CODE) PRODUCT. Now SCO got a new business
divison called "SCO SOURCE". That in mind you would read (SCO
SOURCE) CODE PRODUCT. Source code may be work in progress that doesn't even
compile, "code product" sounds more finalised, it could mean a
binary. It is a huge difference between using source code for research,
evaluation, development or maintainance and code that you put into producton or
sell. Were they misled or are they trying to mislead?[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 12:13 PM EST |
The SCO Group attaches SOFT-2538 with Amendment X - with intent to nullify the
contents of Amendment X? We won't know for sure until the IBM lawyers ask the
SCO Group what is its intent in attaching Amendment X and SOFT-2538 together.
In the meantime, we should get a handle on SOFT-2538: when it was created, under
which circumstances and with which written agreements it is meant to be used,
and which agreement it is meant to modify or clarify.
I gather from my own cursory reading of SOFT-2538 that it is extremely
restrictive. I believe that by including SOFT-2538 with Amendment X, the SCO
Group is using SOFT-2538 out of context which qualifies as an attempt to mislead
or defraud and no different from their past selective quotations of their
Unixware codebase license contracts in terms of a continued attempt to mislead
and defraud.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 12:33 PM EST |
Firstly, I'd recommend that you take Debra's full name off
of the above documents since I wouldn't want anyone to
bother her with speculative nonsense. That being said, I
can offer some information and some speculation on why
this is most likely a red herring.
I used to work with Debra and I know here position used to
deal with contract relating to software shipped from the
PC company. I don't know specifically where she was
working in 1998 but I believe it would be either Thinkpad
or Commercial Desktop in the PC Company. That being said,
this looks like a standard boilerplate for a software
agreement that allows the shipment of SCO software on
PCs/laptops. I am speculating that IBM at the time,
fulfilled an order of PCs for a special bid that included
SCO's OS. As such, that agreement would only relate to the
shipped products and not override existing source code
agreements.
In general, sensitive contracts such as SCO were very
tightly controlled so I don't have any specific knowledge.
The basis of my assumption is the limited references to
source code and the fact that the contract mainly refers
to shipping SOFTWARE PRODUCT. This seems to be a very
slimy/desperate trick by the laweyers and won't play out
very well for them. The employees involved in preloading
and shipping PCs are in a different division (and building
complex) from anyone working on the AIX code. [ Reply to This | # ]
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| Authored by: John Douglas on Sunday, November 16 2003 @ 12:47 PM EST |
Technically, if an unreferenced document is supplied to the court, can it be
relied on later?
In the replies, both side made all sorts of claims/defenses not necessarily
because they were valid but because thay might need the defence later.
So whether or not it was a mistake, it is only important at this stage if it has
legal merit at this stage - can IBM merely dismiss it because it is irrelevant
because the parant document does not reference it?
---
As a Safety Critcal/Firmware Engineer, everything I do is automatically
incorrect until proven otherwise. (The one aspect of my work that my wife
understands).[ Reply to This | # ]
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| Authored by: _Arthur on Sunday, November 16 2003 @ 01:05 PM EST |
Groklaw is referenced in Bruce Schneier's security review Crypto-Garam
#311
http://www.schneier.com/crypto-gram-0311.html
with "Excellent
analysis of the security of Windows vs. Linux "
http://www.groklaw.net/article.php?...
I see the revised Groklaw
article (Ballmer Says Commercial Software is Better Because Someone's Rear End
is on the Line) now acknowledges the well-deserved praise with:
UPDATE Bruce Schneier's Cryptogram for November 15, 2003 links to this
article and says this about it: "Excellent analysis of the security of Windows
vs. Linux." I am, of course, honored.
Once more, Bravo!, PJ !
[ Reply to This | # ]
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| Authored by: sjohnson on Sunday, November 16 2003 @ 01:25 PM EST |
| If SCO is wanting to use SOFT-2358 to show IBM revealed trade secrets, they've
shot themselve in both feet. As PJ pointed out most of section 3.04 (i)-(iv)
already does that. That is the first foot.
The other foot is 3.04(v):
...(v) is independently developed by you with use of the REFERENCE
SOFTWARE PRODUCT or SOFTWARE DERIVATIVE.
Which says IBM can
develop a work-alike product using SCO's product as a reference. And the
work-alike product would be totally unburdened in regards to
confidentiality.
If SCO pushes SOFT-2538, they will have given IBM a "Get
Out of Jail Free" card. Or maybe IBM should push the issue and force SCO to
admit it's mistake in including the agreement as an exhibit. [ Reply to This | # ]
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| Authored by: maxhrk on Sunday, November 16 2003 @ 01:43 PM EST |
this article make me confused. Does that mean SCO lied on this exhibit or
what?
Other thing i want to give a link about lastest microsoft patch
problem. Look like Microsoft is not careful enough. Prehap.... http://www.theinquirer.net/?art
icle=12698
Cheer,
Richard M.
---
SCO: Linux... I am your..
father. [ Reply to This | # ]
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| Authored by: Dan M on Sunday, November 16 2003 @ 02:25 PM EST |
1.02 If YOU fail to fulfill one or more of YOUR material obligations under this
Agreement, SCO may, upon its election and in addition to any other remedies that
it may have, at any time terminate all the rights granted by it hereunder by not
less than two (2) months' prior written notice to YOU specifying any such
breach, unless within the period of notice all breaches specified therein shall
have been remedied upon such termination, YOU shall immediately discontinue use
of and return or destroy all copies of REFERENCE SOFTWARE PRODUCTS covered
hereunder.
This entire agreement, whatever it refers to, is a moot point. They are required
to by this document (unsurprisingly) "specify any such breach".
Their termination action in noncompliance with any specification is actually in
default of this agreement. End of case.
They really ought to check the direction of their guns more closely. They can't
have much left of either foot.[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 03:17 PM EST |
So is IBM going to interview someone at old sco to find out what this was about?
Or would it be quicker to just get the relevant documents from old sco through a
subpoena?[ Reply to This | # ]
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| Authored by: Grim Reaper on Sunday, November 16 2003 @ 05:00 PM EST |
First, Agreement No. SOFT-2538 legally cannot be an amendment to the Amendment X
for the following reasons:
1. Amendment X was a three-party
agreement; and
2. SCO never received powers to modify IBMs
rights under the prior agreements. This would have required Novell's consent.
In fact SCO was explicity denied the right to amend, as can be seen
here:
from the ASSEST PURCHASE AGREEMENT (NOVELL and
SCO)
4.16 SVR Licenses
(b) Buyer shall
not, and shall not have the authority to, amend, modify or waive any right under
or assign any SVRX Licnese without the prior written consent of
Seller.
Therefore, if SCO contends that Agreement No. SOFT-2538
has amending powers and is enforceable against IBM's rights under the prior SVRX
licensing agreements, they are ABSOLUTELY WRONG!
So we can all relax
now.
Of course, I am not a lawyer, but posting on Groklaw helps me
feel like one. ;-)
---
For the love of money is a root of all
kinds of evil (1 Timothy 6:10); R.I.P. - SCO Group, 2005/08/29 [ Reply to This | # ]
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| Authored by: ChrisP on Sunday, November 16 2003 @ 05:41 PM EST |
Putting together some other posts, I'm going to sugget the following:
1/ The 1985 agreement was for UNIX SVR2.x (from memory)
2/ SOFT-2538 was for the 1998 Unixware for the Monterey project or some other
purpose, but it is an agreement with IBM as a whole
3/ By 1998 Unixware had NUMA, RCU and much better SMP etc. than the 1985 code
4/ Amendment X covers the 1985 code and IBM derivatives and extensions which can
be released to the public
5/ SOFT-2538 covers the new stuff which therefore has to be kept confidential
6/ So IBM can't release NUMA etc. and SCOG expects to win the case.
Now where have I gone wrong in this argument? Section 3.04 has a number of
get-out clauses which would probably cover JFS, NUMA, RCU, and some other
things, but what if there was, say, a bit of SMP code or technique in Linux that
SCOG could argue could only have come from Unixware?
Go on, shoot me down in flames ;-)
---
SCO^WM$^WIBM^W dammit, no-one paid me to say this.[ Reply to This | # ]
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| Authored by: inc_x on Sunday, November 16 2003 @ 06:11 PM EST |
A software reference product is typically a working
implemenentation of something that is not intended for
production use.
Example 1: chipmakers like Intel and AMD typically provide
software that shows how you can use new features of their
processors. A good way to do that would be to provide a
functional BIOS for example. Developers from other
companies can use such BIOS then to play around with this
new chip and commercial BIOS manufacturers can look at it
to learn how to add support for the new chip to their
commercial products.
Example 2: X.org manages the X11 specification (X
Windowing System) and provides a reference implementation
(sample implementation) to illustrate how the X11 protocol
should be implementated. XFree86 has been derived from
this reference implementation.
[ Reply to This | # ]
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| Authored by: Anonymous on Sunday, November 16 2003 @ 06:14 PM EST |
Of course this agreement has nothing to do with the SCO vs IBM suit. This is
like the Chewbacca defense:
But more important, you have to ask yourself what does this agreement have to do
with this case. Nothing. Ladies and Gentlemen, it has nothing to do with this
case. It does not make sense. Look at me. I'm a lawyer defending a major Utah
legal system exploiter and I'm talkin' about Chewbacca. Does that make sense?
Ladies and Gentlemen I am not making any sense. None of this makes sense.
And so you have to remember when you're in that jury room deliberating and
conjugating the Emancipation Proclamation, does it make sense? No. Ladies and
Gentlemen of this supposed jury it does not make sense. If Chewbacca lives on
Endor you must acquit.
I know SCO seems guilty. But ladies and gentlemen this is Chewbacca. Now think
about that for one minute. That does not make sense. Why am I talking about
Chewbacca when the SCO groups life is on the line? Why? I'll tell you why. I
don't know. It doesn't make sense. If Chewbacca does not make sense you must
acquit. Here look at the monkey , look at the silly monkey.
(With appologies to everyone involved) :)
This seems fitting.
[ Reply to This | # ]
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| Authored by: D. on Sunday, November 16 2003 @ 10:20 PM EST |
In '97/98 IBM and old SCO were working on a deal for IBM to supply UnixWare
installed on IA*86 servers:
http://news.com.com/2100-1001-201238.html
Could this agreement be involved?
D.[ Reply to This | # ]
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| Authored by: Wesley_Parish on Monday, November 17 2003 @ 07:56 AM EST |
| It's practically the same as the SCO Ancient Unix License! Except
it doesn't
specify any software product. It could be a
license for Tarantella, for
all we know. I'm certain IBM never took
this agreement as an be-all and
end-all of their agreements on
Unix. ---
finagement: The Vampire's
veins and Pacific torturers stretching back through his own season. Well,
cutting like a child on one of these states of view, I duck [ Reply to This | # ]
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| Authored by: sela on Monday, November 17 2003 @ 09:42 AM EST |
According to CRN's Annual Top 25 List Of Most Influential Executives in the IT
Industry, Darl McBride is No. 15 in the list, right after Scott McNealy from
sun, and above Paul Otellini from Intel.
Matthew Szulik and Linus also made it to the same list.
You can read their editorial about McBride here:
http://www.crn.com/sections/special/top25/top25_03.asp?ArticleID=45992
Not much new there - but surprisingly there aren't too many factual errors
either - just the usual collection cliches about Darl growing up in a farm and
such.
[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 17 2003 @ 09:58 AM EST |
scox fell 4% when the market opened today.
SCO is now worth less than $200M.
Time for another press release Darl.[ Reply to This | # ]
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| Authored by: gadget on Monday, November 17 2003 @ 10:55 AM EST |
"Preying on the Big Blue with Legal Chum May Not Be Wise"
It was early in
the morning and there was a faint glow on the horizon, recalls David Boies. He's
standing on the stern of his 20-foot vessel, the "Boies, Schiller &
Flexner LLP", bouncing on the waves. It seemed almost idyllic except for the
Big Blue IBM swimming two inches from his toes.
"That was a bit worrying,"
says Boies, the lawyer leading the hunt for the Big Blue. Even more worrisome
was that Boies and his crew had just a short time remaining to capture the
elusive shark, which mostly feeds whenever it is provoked. However, never one
to fear the big cases, Boies continues to toss more legal chum over the side of
the boat.
This fateful morning the firm had their doubts. They'd gotten too
late of a start, launching their expedition without any of their equipment.
After trolling around for hours with no set course and shouting at the water,
the crew finally came up with the plan to try and bait the Big Blue. The shark
had probably come and gone already. So they decided to pack it in for the
morning, pulling up their small underwater trap of frivolous lawsuits and
"Agreement No. SOFT-2538 --SCO Exhibit D" shark bait ? that's when they got a
shock.
"We we were in a 20-foot boat with a 50-foot shark in the air," says
Boies. "It's hard to think nothing will happen, but we thought our 20-foot craft
was big enough to frighten the beast. You are always nervous out there. Sharks
are very intelligent."
But Boies and Co finally got their lucky
"catch" on the very last day. However, "catch" is an interesting
use of the word. Their gear sat patiently at the back of the boat ready for just
this moment. At high noon the curious Big Blue hit the latest filings. There was
barely enough light. Surprisingly for Boies, this time, there was no
fright.
"I just crossed my fingers," he says.
This would be the first
time that a Big Blue had been captured on film in such a strike. For the great
shark had come up out of the water and devoured the diminutive trap and had
latched firmly onto the back of the craft, a third of the boat firmly lodged in
its ferocious jaws. Bristling with anger at the prodding thrashing the boat in
the water, the shark appeared to have no intention of releasing it's
catch. The hunter had become the hunted. And seemingly, no amount of
chum or PR legal barrage was going to dissuade this remarkable animal from its
meal.
Boies was considering issuing a "may-day," calling on larger vessels
to help extricate his boat from the jaws of the shark. Although it is doubtful
any will respond with any meaningful assistance other than shouting into the
water.
[ Reply to This | # ]
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| Authored by: Ruidh on Monday, November 17 2003 @ 11:08 AM EST |
This contract has nothing to do with the SCO/IBM case. SCO must have handed a
file of contracts with IBM on it to their lawyers and the lawyers attached this
one to a filing probably not understanding that it applies only to a specific
version of source that SCO gave to the IBM Research Triangle operation at one
point in time.
This contract is so that IBM can get a prerelease copy of a version of Unixware
or SCO Server to make sure that it runs on machines that IBM offers. The source
code lets them tell SCO where things fail so that SCO can code around it or
otherwise make their software offering work on IBM's equipment. SCO probably
has this same contract with a dozen or more opertions at that time.
There's no indication that this has anything to do with Monteray or any of the
other issues in the case. It is not on point to any of the issues in the case
any will be disregarded. If SCO attempts to claim that it has broader
application in one of its briefs, IBM will have an opportunity to rebut that
argument.
[ Reply to This | # ]
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