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SCO's Exhibit C - The AT&T/IBM Side Letter |
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Sunday, November 16 2003 @ 01:01 AM EST
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Here is the "what's mine is mine and what's yours is yours" AT&T/IBM Side Letter, attached to SCO's Amended Complaint as Exhibit C. Thanks, once again, to the loyal and hard-working Scott McKellar for providing it to Groklaw.
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[AT&T Technology Systems Letterhead]
O.L. Wilson
Manager, Software
Sales and Marketing
[address, phone]
February 1, 1985
Old Orchard Road
Armonk, New York 10504
Gentlemen:
Re:
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Software Agreement Number SOFT-00015, Sublicensing
Agreement Number SUB-00015A and Substitution Agreement
Number XFER-00015B
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This letter states understandings between our companies relating to
the referenced agreements and amends certain sections in such
agreements concerning SOFTWARE PRODUCTS subject to the referenced
Software Agreement.
A. Software Agreement
1. Regarding Sections 2.01 and 4.01, we will consider
extending rights granted under Section 2.01 to include use of
SOFTWARE PRODUCTS in countries other than the United States
and giving written consent under Section 4.01 to export
SOFTWARE PRODUCTS to such countries when specific needs
arise. In the case of additional DESIGNATED CPUs in such
countries such extension and consents will be given by the
Supplements for such CPUs prepared in accordance with Section
2.03. In the case of your export of modified SOFTWARE
PRODUCTS to our source licensees in such countries such
consents will be given by an appropriate writing consistent
with Section 7.06(b). We are presently willing to grant such
rights for the countries you have requested, namely,
Australia, Austria, Belgium, Canada, Republic of China
(Taiwan), Denmark, Finland, France, Federal Republic of
Germany (West Germany), Greece, Hong Kong, Ireland, Israel,
Italy, Japan, Republic of Korea (South Korea), Luxembourg,
The Netherlands, New Zealand, Norway, Sweden, Switzerland,
United Kingdom (England, Wales, Scotland, Northern Ireland),
and Singapore. We will not unreasonably withhold such
permission for such listed countries or for other countries
that you may identify. Our concerns in this regard are the
laws of the recipient country relating to protection of
software and U. S. export control laws.
2. Regarding Section 2.01, we agree that modifications and
derivative works prepared by or for you are owned by you.
However, ownership of any portion or portions of SOFTWARE
PRODUCTS included in any such modification or derivative work
remains with us.
3. You have requested that your contractors be permitted to use
SOFTWARE PRODUCTS pursuant to the referenced Software
Agreement.
Accordingly, notwithstanding any provision to the contrary in
the Software Agreement, including Section 7.06(a) as amended
hereby, it is agreed that, subject to the conditions set
forth herein, the rights granted in Section 2.01 of the
Software Agreement be extended to permit you to provide
access to and allow use of SOFTWARE PRODUCTS by your
contractors.
Such use may be on your DESIGNATED CPUs or on such
contractors' CPUs that you designate as additional DESIGNATED
CPUs pursuant to Section 2.03 of the Software Agreement.
Such use by contractors will be deemed to be for your own
internal business purposes. If such use is on a contractor's
CPU, you may furnish a copy of a SOFTWARE PRODUCT to such
contractor. You shall secure from each such contractor, at
the time of or before providing access to or furnishing any
copy of a SOFTWARE PRODUCT, the agreement of such contractor
in writing that any claim, demand or right of action arising
on behalf of such contractor from access to or use of the
SOFTWARE PRODUCT shall be solely against you and that such
contractor agrees to the same obligations and
responsibilities as to confidentiality and other restrictions
pertaining to the use of the SOFTWARE PRODUCT as those
undertaken by you under the Software Agreement. Each such
agreement shall also provide that, when a contractor's work
for you is completed, all copies of the SOFTWARE PRODUCT and
any software derived from or developed with the use of a
SOFTWARE PRODUCT shall be returned to you by such contractor
and such contractor shall erase any such software from any
storage element of apparatus. Copies of such agreements with
contractors shall be provided to us at our request. However,
portions of such agreements not specifically required by this
paragraph may be deleted. Information furnished by LICENSEE
relating to contractors shall be subject to Paragraph A15 in
this Letter Agreement.
4. Regarding Section 5.04, we agree that you shall not be
obligated to pay any tax based on our net income in the
United States or elsewhere.
5. Regarding Section 6.03 of the Software Agreement and Sections
2.07 and 3.03 of the Sublicensing Agreement, we will not
terminate your rights for breach, nor will we give notice of
termination under such Sections, for breaches we consider to
be immaterial. We agree to lengthen the notice period
referenced in such Sections from two (2) months to one
hundred (100) days. If a breach occurs that causes us to
give notice of termination, you may remedy the breach to
avoid termination if you are willing and able to do so. In
the event that a notice of termination is given to you under
either of such Sections and you are making reasonable efforts
to remedy the breach but you are unable to complete the
remedy in the specified notice period, we will not
unreasonably withhold our approval of a request by you for
reasonable extension of such period. We will also consider a
reasonable extension under Section 2.07 of the Sublicensing
Agreement in the case of a DISTRIBUTOR who is making
reasonable efforts to remedy a breach.
We will consider arbitration if a dispute arises on payments.
In any event our respective representatives will exert their
mutual good faith best efforts to resolve any alleged breach
short of termination.
6. Regarding Section 6.05 of the Software Agreement and Section
3.05 of the Sublicensing Agreement, we will offer new
software and sublicensing agreements to your former
SUBSIDIARIES on the same basis as to any other prospective
licensee. A former SUBSIDIARY would be unlicensed during the
period between its ceasing to be your SUBSIDIARY and the
effective date of such new agreements. Therefore, new
agreements should be in effect before a SUBSIDIARY is
divested.
7. Regarding Section 7.03, we are not aware of any patent or
copyright infringement claim or action against us relating to SOFTWARE
PRODUCTS.
8. Regarding Section 7.05, we will cooperate with you in
defending litigation arising from your use of SOFTWARE
PRODUCTS (or sublicensing of SUBLICENSED PRODUCTS under the
Sublicensing Agreement), but the extent of such cooperation
cannot be determined until such litigation arises.
9. Amend Section 7.06(a) by replacing such section with the
following:
--7.06(a) LICENSEE agrees that it shall hold SOFTWARE
PRODUCTS subject to this Agreement in confidence for AT&T.
LICENSEE further agrees that it shall not make any disclosure
of such SOFTWARE PRODUCTS to anyone, except to employees of
LICENSEE to whom such disclosure is necessary to the use for
which rights are granted hereunder. LICENSEE 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. Nothing in
this agreement shall prevent LICENSEE from developing or
marketing products or services employing ideas, concepts,
know-how or techniques relating to data processing embodied
in SOFTWARE PRODUCTS subject to this Agreement, provided that
LICENSEE shall not copy any code from such SOFTWARE PRODUCTS
into any such product or in connection with any such service
and employees of LICENSEE shall not refer to the physical
documents and materials comprising SOFTWARE PRODUCTS subject
to this Agreement when they are developing any such products
or service or providing any such service. If information
relating to a SOFTWARE PRODUCT subject to this Agreement at
any time becomes available without restriction to the general
public by acts not attributable to LICENSEE or its employees,
LICENSEE's obligations under this section shall not apply to
such information after such time.--
10. Regarding Section 7.06(b), this section covers the situation
where one of our licensees wishes to furnish its modified
version of our source code for a SOFTWARE PRODUCT to another
of our licensees for the same product. The last sentence of
this section makes clear that you may receive source code
from another such licensee, provided you treat such source
code as if it were the source code we furnished to you. This
language is not intended to refer to an object-code product
that you obtain from another of our licensees pursuant to
that licensee's sublicensing rights.
11. Regarding Section 7.06, we recognize that you may at some
time be required to disclose a SOFTWARE PRODUCT to others (i)
by law, (ii) by a valid order of a court or other
governmental body, (iii) by your existing undertaking with
the European Economic Community or (iv) in order to establish
your rights under the Software Agreement. You recognize the
proprietary nature of SOFTWARE PRODUCTS and the need to
protect SOFTWARE PRODUCTS from unrestricted disclosure.
Accordingly, you agree not to make any such disclosure
without giving notice to us so that we have an opportunity to
intervene. We agree to respond to any such notice within a
reasonable time, consistent with the requirement that you
disclose. You agree to obtain, or assist us in obtaining, a
protective order appropriately limiting the extent of any
such disclosure that may eventually be made.
12. We agree that all SOFTWARE PRODUCTS, including enhancements
to or new versions of existing SOFTWARE PRODUCTS, generally
available under the Software Agreement will be made available
to you at the fees and under terms, warranties and benefits
equivalent to those offered to other licensees.
13. Regarding Section 1(e) of the "Schedule for UNIX* System V,
Release 2.0, Version 1.0" attached to Supplement 1 of the
Software Agreement, Section 1(c) of the "Schedule for UNIX
Documenter's Workbench** Software" attached to Supplement 2
of the Software Agreement, and the "Schedule for 370
DEVELOPMENT SYSTEM V" attached to Supplement 3 of the
Software Agreement, we agree that the fees in such schedules
are not subject to increase.
14. Regarding the documentation listed in Section 2 of the
Schedule for UNIX System V, Release 2.0, Version 1.0, the
documents entitled "UNIX System V System Release Description"
and "UNIX System V-International Release Description" are not
presently available without restriction to the general
public. All other listed documents are available without
restriction.
15. We agree that the identities of your contractors,
DISTRIBUTORS and AUTHORIZED COPIERS, as well as the types and
serial numbers of DESIGNATED CPUs of such parties, are
confidential and need only be disclosed to us as specified
under the referenced agreements, as modified hereby, and that
such information will be used by us only for the purposes of
administering and enforcing such agreements and will not be
disclosed to anyone except those having a need to know for
the purpose of administering the referenced agreements.
B. Sublicensing Agreement
1. A DISTRIBUTOR may also be your contractor pursuant to the
terms set forth in item A3 above.
2. We agree that "internal business purposes" in Sections
2.01(a) and 2.01(b) includes the right to offer data
processing services to others.
3. Regarding the following IBM form agreements:
Our
Reference
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Form No.
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Title
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1.
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S125-3358-0
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Agreement for IBM Licensed Programs
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2.
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S125-3419-0
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IBM Usage License Amendment to
Agreement for IBM Licensed Programs
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3.
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S125-3301-0
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IBM Program License Agreement
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4.
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S137-0075-0
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IBM Instruments, Inc. Program License
Agreement
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5.
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04-83
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Amendment to Agreement for IBM
Licensed Programs (Value Added
Remarketer) |
6.
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04-83
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Agreement for IBM Licensed Programs
(Value Added Remarketer's Licensed
End User)
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7.
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6172208
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IBM Program License Agreement
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8.
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Unnumbered
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IBM Personal Computer Retail Dealer
Agreement, Software
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9.
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926-2661-0D
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IBM Personal Computer Retail Dealer
Agreement |
We have reviewed such form agreements for use under the
provisions of the Sublicensing Agreement and have no
objections to such use, or the use of substantially similar
forms, in the United States and Puerto Rico provided that:
(a) In using forms such as 1 and 6 (our references), you
will not specify "Installation License Applies" or "Location
License Applies";
(b) If your customer is permitted to make its own additional
copies of "licensed program materials" for use on additional
machines, as permitted under form 1, you treat such
additional copies under the Sublicensing Agreement as if you
had furnished such copies;
(c) In the next revision of form 3 you correct the language
in the second paragraph relating to title to indicate that
title may be retained by a third party (or by your licensor);
(d) In the next revision of forms 4 and 7 you include a
provision prohibiting reverse assembly or reverse
compilation, as appears in forms 1, 3 and 6; and
(e) In dealing with AUTHORIZED COPIERS you obligate such
parties to include in copies they make of SUBLICENSED
PRODUCTS the notices required by Section 2.08(a) of the
Sublicensing Agreement.
4. Amend Section 2.02 by changing "written agreement on the
package" to --written agreement on or accompanying the
package--.
5. Amend Section 2.05(b) by replacing such Section with the
following:
--(b) If an AUTHORIZED COPIER also has been granted a right
to use a SOFTWARE PRODUCT, either as a licensee of AT&T (or
of a corporate affiliate thereof) or as a contractor of
LICENSEE (in accordance with requirements of AT&T), such
AUTHORIZED COPIER may use such SOFTWARE PRODUCT to modify a
SUBLICENSED PRODUCT derived from such SOFTWARE PRODUCT. If
the resulting modifications are owned solely by LICENSEE,
then fees for copies of such modified SUBLICENSED PRODUCT
distributed to customers by such AUTHORIZED COPIER may be
paid to AT&T pursuant to this Sublicensing Agreement or
pursuant to a Sublicensing Agreement between AT&T and such
AUTHORIZED COPIER, as LICENSEE shall elect. However, if such
AUTHORIZED COPIER retains any ownership interest in such
modifications, then fees for copies of such modified
SUBLICENSED PRODUCT distributed to customers by such
AUTHORIZED COPIER must be paid to AT&T only pursuant to a
Sublicensing Agreement between AT&T and such AUTHORIZED
COPIER. Regardless of which Sublicensing Agreement is
involved, only one fee shall be collected by AT&T for such
copy.
6. Regarding Section 2.06, "best efforts" need be no more than
the efforts you would customarily use to enforce equivalent
agreements (such as those listed in B3 above) with your
customers, value added resellers, end users, and dealers.
7. Regarding Section 2.08(a), only bona fide notices need be
included, not irrelevant comments that may appear in a
SOFTWARE PRODUCT.
8. Regarding Section 2.09, we have not yet made any copies of
software materials available under this Section. If we do
so, you may elect whether to make your own copies or purchase
such copies from us.
9. Regarding the references you are permitted to make to our
trademark under Section 2.10, you are under no obligation to
make such references.
10. Amend Section 3.02, first and second lines, by deleting "or
AT&T notifies LICENSEE in writing", and, third line, by
changing "such party" to --LICENSEE--.
11. The discount provisions in the Sublicensing Agreement are
deleted. We will exert our good faith best efforts to
propose a new discount provision by April 1, 1985. Such new
discount provisions will be retroactive to the effective date
of the Sublicensing Agreement and, at a minimum will:
(i) provide a discount percentage, applicable to
essentially yearly discount periods, of at least two percent
(2%) for each whole one hundred thousand dollars
($100,000.00) of discounted per-copy fees up to a maximum of
sixty percent (60%), or equivalent;
(ii) require advance payment of per-copy fees by you no more
frequently than quarterly;
(iii) require no advance commitment by you regarding volume
of SUBLICENSED PRODUCTS furnished to customers or put into
use; and
(iv) provide for no retention by us of advance payments made
by you unless mutually agreed.
12. Regarding Section 5.01, we agree that neither you nor your
AUTHORIZED COPIERS or DISTRIBUTORS will be required to
provide or disclose the identity of customers to us or our
accredited auditing representatives.
13. Regarding Section 5.02(a), we agree that the notification in
writing required by such Section may be within thirty (30)
days after the date you begin furnishing copies of a
SUBLICENSED PRODUCT to customers or DISTRIBUTORS or putting
such copies into use on your CPUs, and that you may pay any
sublicensing fee for the SOFTWARE PRODUCT on which such
SUBLICENSED PRODUCT is based at the time of such notification.
14. Regarding Section 5.02(c), you need not pay a per-copy fee
for copies of SUBLICENSED PRODUCTS that are returned without
having been used or are furnished in place of a defective
copy. You are not required to pay an additional per-copy fee
for an enhancement if the enhancement does not increase the
number of users supported by a product into the next higher
category. However, when we furnish later versions of a
SOFTWARE PRODUCT with new features, we may require payment of
additional sublicensing fees to upgrade your earlier
SUBLICENSED PRODUCTS to include the new features.
15. Regarding the documentation you may furnish to a customer or
end user, which documentation is defined as part of a
SUBLICENSED PRODUCT, you may furnish the number of copies
necessary to reasonably support the product without paying an
additional sublicensing fee. You may also furnish to
prospective customers the number of copies of such
documentation necessary to reasonably support the marketing
of the SUBLICENSED PRODUCT without paying a sublicensing fee
for such copies.
16. Regarding your obligation under the Sublicensing Agreement to
pay per-copy sublicensing fees for SUBLICENSED PRODUCTS
furnished to customers (or put into use on your internal
CPUs), we recognize that certain of your SUBLICENSED PRODUCTS
may comprise a set of parts, with one major part being a
prerequisite for the other, minor part(s), such that if you
furnished (or put into use) all the parts together you would
be obligated to pay only one per-copy fee. However, we
understand that you wish to furnish (or put into use) the
parts separately, paying the full per-copy fee when you
furnish (or put into use) the major part and no fee at all
when you furnish (or put into use) the minor part(s). We
agree that you may do this, provided that you report,
pursuant to Section 5.02 of the Sublicensing Agreement, the
quantities of each major and minor part furnished (or put
into use) and that such quantities be reconciled periodically
to determine whether the quantity of any minor part ever
exceeds the quantity of major parts, and that if there is
such an excess, you pay an additional per-copy fee for each
excess minor part. We will exert our good faith best efforts
to propose by April 1, 1985 methods for such reconciliation
and for determining such additional per-copy fees. We would
expect such fees to be based on a proportional reduction of
the full per-copy fee with the objective of achieving an
equitable fee arrangement, taking into account the excess
quantities of minor parts over major parts. The discount
arrangement applicable to the full per-copy fees will also
apply to the additional per-copy fees.
C. Substitution Agreement
Regarding SUBLICENSED PRODUCTS based on LICENSED SOFTWARE
under the prior Software Agreement listed in the Substitution
Agreement, we agree that you may elect to pay per-copy
sublicensing fees for some such SUBLICENSED PRODUCTS at the
rates set forth in Sections 4.01(a) and (b) of the prior
Supplemental Agreement (Customer Provisions) ("the old
rates") and other such SUBLICENSED PRODUCTS at the rates set
forth in Section 1(c) of the Schedule for UNIX System V,
Release 2.0 ("the new rates"), provided:
(a) You pay the Initial Sublicensing Fee specified in
Section 2(c)(i) of such Schedule when you begin paying some
per-copy fees at the new rates while continuing to pay other
per-copy fees at the old rates. (Such Initial Sublicensing
Fee will be waived if you elect to pay all per-copy fees at
the new rates.)
(b) Per-copy fees you pay under the old rates do not apply
to the determination of any discount percentage under the new
Sublicensing Agreement and per-copy fees you pay under the
new rates do not apply to the "Cumulative Total of Fees Paid"
under the prior Supplemental Agreement (Customer Provisions).
(c) In the statements furnished pursuant to Section 5.02(b)
of the new Sublicensing Agreement you clearly distinguish
whether you are applying the old rates or the new rates for
relevant SUBLICENSED PRODUCTS.
Capitalized terms in this letter agreement are defined in the
referenced agreements.
If you agree with the above understandings and amendments, please so
indicate by signing and dating the attached copy of this letter
agreement in the spaces provided therefor and returning such copy to
us.
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Very truly yours,
AT&T TECHNOLOGIES, INC.
By {signature: illegible}
for O. L. Wilson
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ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By {signature: illegible}
Title {illegible}
Date {illegible}
*UNIX is a trademark of AT&T Bell Laboratories.
**Documenter's Workbench is a trademark of AT&T Technologies.
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Authored by: Mark Grosskopf on Saturday, November 15 2003 @ 08:04 PM EST |
I think Paragraph 10 would cover any source code conveyed to IBM when IBM bought
out Sequent, even if Sequent didn't have this amendment to their license from
AT&T...
Mark[ Reply to This | # ]
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Authored by: fjaffe on Saturday, November 15 2003 @ 08:07 PM EST |
Paragraph A.3 "from any storage element of apparatus." should be
"...or aparatus."
Paragraph A.5 "notice of termination is given to your..." should be
"you"
Sorry, that is all I could find. Excellent job!!![ Reply to This | # ]
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Authored by: freeio on Saturday, November 15 2003 @ 08:54 PM EST |
PJ
The following article by Geoffrey Colvin (page 55 in the November
24
issue of Fortune Magazine) does not mention TSG by name, but his take
is that
the "family" nature of the current crop of corporate crimes has
attricted the
AGs' notice.
"Value
Driven Column"
My take on this is that the TSG actions appear to
fit the "enterprise
corruption" standard under which the Mafia has been
prosecuted.
His example of this is HealthSouth, but the parallels are
striking.
As such, it opens up the possibility of goading the
proper AG or AGs into
noting this case, and following up. Note
that this has the peculiar behavior of
putting the cost of prosecution
on the state government unlike the lawsuit
route. Furthermore, it
can and is being used against both corporations and
their principals.
It is worth the time to read.
--- 73 de
w4ti [ Reply to This | # ]
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Authored by: Anonymous on Saturday, November 15 2003 @ 09:28 PM EST |
This actually isn't the letter described in the BSDi depositions. It lacks any
added clause at the end of section 2.01, and fails to mention that derivatives
and modifications are only subject to the same confidentiality obligations as
SOFTWARE PRODUCT in the event that they actually contain some SOFTWARE PRODUCT.
Here is an example of section 2.01 from the August 1985 side letter in BSDi:
"Para. 2.01 (a) ...[the] right to use includes the right to modify such
SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT,
provided that any such modification or derivative work that contains any part of
a [AT&T] SOFTWARE PRODUCT subject to this Agreement is treated hereunder the
same as such [AT&T] SOFTWARE PRODUCT. *AT&T-IS claims no ownership
interest in any portion of such a modification or derivative work that is not
part of a [AT&T] SOFTWARE PRODUCT.*"
Notice the wording of that differs from the section 2.01 in the side letter
above in several key respects. First there is an extra sentence added where
AT&T disclaims any ownership in any code they didn't develop, but also that
ONLY derivatives and modifications that ACTUALLY CONTAIN some AT&T code are
to be treated as SOFTWARE PRODUCT.
"[fn13] It appears that AT&T similarly tried to restrict other
licensees' rights with respect to code they derived from AT&T's UNIX,
because AT&T sent out a clarification to all its licensees in August, 1985
which stated: "Section 2.01. The last sentence was added to assure
licensees that AT&T will claim ownership in the software that they developed
-- only the portion of the software developed by AT&T."
Here you can see the last sentence was added to the portion of a post August
1985 license shown in the UC Regents amicus brief, but it doesn't yet appear in
section 2.01 of IBM's February 1985 side letter.
This supplements the Software Agreement. It's not merely a clarification it's
an amendment too. Some have suggested that the sublicense (for example
Sequent's) cancels any previous amendments to the Software agreement. Section 3
of the sublicense actually serves to keep this side letter in effect. Section 4
of the sublicense specifically allows for supplements to the main license
agreement. I see nothing in the either IBM sublicense agreement that
specifically voids any supplements or amendments to the main Software Agreement.[ Reply to This | # ]
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Authored by: sela on Sunday, November 16 2003 @ 02:58 AM EST |
In psychology, cognitive dissonance is a term describing a situation where there
is a contradition or a gap between your beliefs and your actual actions.
An unresolved cognitive dissonance is a very uncomfortable situation, and
therefore people try to "resolve" it in different ways. The two
easiest ways to resolve a cognitive dissonance is either adjusting your beliefs
to meet reality, or - an even easier way, adjusting your perception of reality
so that it would seem to you as if there is contradition.
One particular type of mechanism related to cognitive dissonance is known as the
"Justification of effort" principle. The idea is that once you made
great effort to achieve something, it would look like a great idea to you, even
when facts should convince you this is a very bad idea, because changing the
path you took means all your efforts where for nothig, which would result in a
cognitive dissonance.
I do tend to believe this cognitive mechanism may very well explain the actions
of Darl and friends at SCO. For me, the picture of a bunch of stuborn men
insisting on sticking to a futile and destuctive way because they feel commited
to it due to past actions seem more probable than all the conspiration
theories.
After all, exactly the same thing happens during war.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 05:53 AM EST |
Looks like section 7.06(a)is the basis for SCO's suit.
LICENSEE
further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS
to anyone, except to employees of LICENSEE to whom such disclosure is necessary
to the use for which rights are granted hereunder
but it looks like
they have shot their Trade Secret in the foot
Nothing in this
agreement shall prevent LICENSEE from developing or marketing products or
services employing ideas, concepts, know-how or techniques relating to data
processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided
that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such
product or in connection with any such service and employees of LICENSEE shall
not refer to the physical documents and materials comprising SOFTWARE
PRODUCTS
Does this mean that IBM can develope software, using
any methods from unix as long as it doesnt do a copy or refer to the manuals?
If they learn all of the methods and then walk into a clean room and write linux
software, they should be good.
Looks like #11 is also where SCO is
trying to draw it's case.
You recognize the proprietary nature of
SOFTWARE PRODUCTS and the need to protect SOFTWARE PRODUCTS from unrestricted
disclosure. Accordingly, you agree not to make any such disclosure without
giving notice to us so that we have an opportunity to intervene.
I
gues that only applies to source code that has some of the original source code
in it. Other wise the contract wouldn't have said that they can develop and
market software based on methods as long as the manuals weren't referenced or
source code copied. Guess that also explains their complaint about IBM not
telling them about working on Linux at the same time as Montery.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 07:46 AM EST |
Future news prediction?
You need to read the right parts :-) :-)
:-)
2. Regarding Section 2.01, we agree that
modifications and derivative works prepared by or for you are owned by
you. However, ownership of any portion or portions of SOFTWARE PRODUCTS
included in any such modification or derivative work remains with
us.
On in short:
"2." ... "we agree that" ... "works
prepared by or for you are owned by" ... "us."
And gee, you were
wondering about SCO's 16th and 25th affirmative defenses:
16th: "IBM is
not, or may not be, the owner of the '746, '211, '209, or '785 Patents at
issue"
25th: "Upon information and belief, IBM lacks standing to assert
that SCO infringed some or all of the patents at issue"[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 02:36 PM EST |
Well, this sure blows a big hole in SCO's case. All that might be left is
original SVR4 code that SCO might claim IBM gave to Linux, and ditto Unixware
IBM learned about in the Monterey project.
Regarding SVR4 code, who would want it? it is old and obsolete, and it would
have to be very extensively re-written to work in Linux.
And here is something else. There are thousands of organizations out there that
are licenced for the SVR4 code, and I am sure that a great many of them also use
Linux. You can be sure that when SCO started making claims about code in Linux,
most if not all of these organizations took their SVR4 source code and compared
it with Linux.
If they had come up with any significant amount of SVR4 code in Linux, their
lawyers would have warned them they were in danger of a lawsuit, and they would
have run to SCO to get a licence. The fact that SCO is failing to claim that
they have sold thousands of licences indicates that no one found any infringing
code.
As far as Unixware code goes, why would Linux even want it? So it seems to me
that SCO has no case left at all.
[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 02:54 PM EST |
We should show this letter to the various analysts who are writing about the SCO
case. It pretty well blows SCO's case out of the water.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 04:09 PM EST |
I was baffled trying to read this document without first knowing in which decade
it was written! I had to pull up the pdf scan to learn that it is clearly dated
"FEB 1 1985" on page one. Please add that to the text version.
Thanks for all your work on this.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, November 16 2003 @ 05:22 PM EST |
---------------------
2. Regarding Section 2.01, we agree that modifications
and derivative works prepared by or for you are owned by you. However,
ownership of any portion or portions of SOFTWARE PRODUCTS included in any such
modification or derivative work remains with us.
--------------------
I'm
not a lawywer, so can somebody explain to me why this line doesn't nuke 90% of
SCO's claims???
As I read this:
If IBM released code with SYSV code in it,
then the SYSV code is owned by SCO.
If IBM released code that that was
originally written for AIX or Dynix, but doesn't contain SYSV code, then IBM
owns it and can do what they want.
Seems simple enough... so why in the world
did SCO submit this as part of their claim?
[ Reply to This | # ]
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Authored by: Wesley_Parish on Monday, November 17 2003 @ 07:39 AM EST |
9. Amend Section 7.06(a) by replacing such
section with the
following:
--7.06(a) LICENSEE agrees that it shall hold SOFTWARE
PRODUCTS subject to this Agreement in confidence for AT&T.
LICENSEE
further agrees that it shall not make any disclosure of
such SOFTWARE
PRODUCTS to anyone, except to employees of
LICENSEE to whom such disclosure
is necessary to the use for
which rights are granted hereunder. LICENSEE
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. Nothing in this agreement shall
prevent LICENSEE from
developing or marketing products or
services employing ideas, concepts,
know-how or techniques
relating to data processing embodied in SOFTWARE
PRODUCTS
subject to this Agreement, provided that LICENSEE shall not copy
any code from such SOFTWARE PRODUCTS into any such product
or in connection
with any such service and employees of
LICENSEE shall not refer to the
physical documents and materials
comprising SOFTWARE PRODUCTS subject to this
Agreement when
they are developing any such products or service or providing
any
such service. If information relating to a SOFTWARE PRODUCT
subject
to this Agreement at any time becomes available without
restriction to the
general public by acts not attributable to
LICENSEE or its employees,
LICENSEE's obligations under this
section shall not apply to such information
after such time.--
As I see it, AT&T was doing such a
good job
distributing its "IP around, that this
clause If information relating to a SOFTWARE
PRODUCT subject
to this Agreement at any time becomes
available without restriction to the
general public by acts not
attributable to LICENSEE or its employees,
LICENSEE's obligations
under this section shall not apply to such information
after such
time. pretty much renders SCO's case something
between barratry and contempt of court.SCO has not taken
on SUN's
source code
licensing; I wonder why. And that situation,
of Sun
releasing source code,
has fulfilled the conditions above. So why
SCO should be allowed to get away
with its wild claims, is beyond
me. IBM should demand an Open
Book style
trial, because, as proved above, SCO has NO secrets
anymore. --- 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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