|
|
| 1984 AT&T-DEC Letter Agreement - SCO Exhibit 291-22 |
 |
|
Saturday, December 11 2004 @ 09:46 AM EST
|
Here is a 1984 letter agreement [PDF] between Digital Equipment Corporation and AT&T, submitted by SCO as an exhibit in their eternal quest to try to undermine the testimony of all the folks who have stood up for IBM in their interpretation of the AT&T-IBM license agreement. SCO submitted this document as an exhibit attached to its Memorandum in Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004, a motion SCO lost, so evidently it did not persuade the judge. It's another of the paper exhibits, and our thanks go to fudisbad for transcribing it.
Perhaps SCO feels it can't find sufficient living people to agree with their interpretation of the license, so as to counter the united army of IBM supporters, so they instead dig decades back to find a letter on Otis Wilson's letterhead -- but signed for him by someone else -- to say, in effect, that Mr. Wilson's declaration, also in support of IBM, is somehow rebutted by this old letter to DEC.
Mr. Wilson, who was "head of the group responsible for licensing the UNIX System V operating system worldwide" at AT&T and later USL, testified: "AT&T and USL did not intend to assert ownership or control over modifications and derivative works prepared by our licensees, except to the extent of the original UNIX System V source code included in such modifications and derivative works. Although the UNIX System V source contained in a modification or derivative work continued to be owned by AT&T or USL, the code developed by or for the licensee remained the property of the licensee, and could therefore be used, exported, disclosed or transferred freely by the licensee."
He said that one reason why IBM's contract was not intended to control their work was that IBM wouldn't have agreed to sign the contract if it had such terms, and, secondly, AT&T was under antitrust scrutiny at the time, and the company was extremely sensitive about potential anticompetitive actions, or even the appearance of them, at the time the license was negotiated.
For that reason, he testified, *when licensees asked for* reassurance that the terms were not seeking such control, they happily provided written or oral clarification, in IBM's case written, in the Side Letter. What SCO would dearly like to prove with the DEC letter is that AT&T did so try to protect methods and concepts. Maybe back in 1984 they may have tried with DEC in this one particular deal, but what does that matter now? We've seen what USL thought it could still protect in 1994, in the USL-Regents Settlement Agreement that recently came to light, 26 piddly "Restricted Files", and in my mind, it makes all these discussions about 1984 and methods and concepts so totally over. And anyway, IBM has the Side Letter. Not that a passing reference to 1984 doesn't feel somehow appropriate when discussing SCO's stated position.
Here is what SCO said about this letter: "Third, IBM’s declarants now deny that AT&T sought to protect the methods and concepts embodied in UNIX System V, again in the face of plain contractual language to the contrary. Mr. Wilson’s declaration now states that, at least as of February 1985, AT&T did not seek to protect the methods and concepts embodied in UNIX System V:
'In fact, we were not aware of any particular "methods or concepts" that needed to be protected. We made up this phrase as sort of a general catch-all. We were willing to delete the reference to methods and concepts in the IBM agreement because we were not aware of any UNIX System V methods or concepts that required protection. The fact that we had distributed the UNIX System V source code so broadly that the internal structure of the UNIX system V operating system was well known in the academic community and by computer programmers generally.' Wilson Decl. (Dec. 2003) ¶ 14 (Exh. 21).'
"See also Frasure Decl. ¶ 12 (Exh. 18) (claiming that the licensing agreement provisions were not intended 'to restrict our licensees’ use export, disclosure or transfer of anything besides the licensed UNIX System V source code and related materials').
"But just prior to and well after the IBM Side Letter was signed in February 1985, Mr. Wilson (on behalf of AT&T) repeatedly and expressly sought to protect UNIX 'methods and concepts' pursuant to AT&T’s license agreements. For example: -
In his letter to Digital Equipment Corporation (“DEC”) dated Sept. 5, 1984, Mr. Wilson wrote: “Regarding Section 2.01 of the referenced Software Agreement, you do not have all right, title and interest in derivative works based on a SOFTWARE PRODUCT if such derivative works include any of our code or embody any of the methods and concepts used in a SOFTWARE PRODUCT.” Exh. 22 at 2 (emphasis added).
-
In proposed (and later executed) letter agreements dated June 18, 1990, June 29, 1990, and August 3, 1990, Mr. Wilson stated to other licensees: “You will not provide access to any copy of the source code of the SOFTWARE PRODUCT (including methods and concepts contained therein), in whole or in part, to anyone other than your organization’s employees who have a need to know.” Exhs. 23, 24 & 25 (emphasis added).
"Such statements plainly belie Mr. Wilson’s current claims that by the time of the IBM Side Letter in 1985, 'we were not aware of any UNIX System V methods or concepts that required protection' and that AT&T 'had distributed the UNIX System V source code so broadly' that no protection for methods and concepts could obtain."
What Mr. Wilson said was that when IBM pressed the issue, AT&T was willing to strike that methods and concepts language, because it wasn't meaningful any more. That doesn't speak to 1984 with DEC, or, for that matter, what he might not bother to strike from their boilerplate language in a license with someone who didn't press the issue the way IBM did. One thing I understood from the USL-Regents settlement is that a lot of folks may have been paying for pretty much thin air for a long time. No wonder they wanted the agreement to be kept a secret.
There are a number of reasons why this exhibit might not be persuasive, even if we hadn't seen the USL-Regents settlement. The date matters, for starters. As you will recall, AT&T's Wilson testified in his deposition in 1992 in the BSDi case that everything changed some time in 1984. IBM's original commercial license was executed in 1985, after the change. There was a liberalization as a general trend, in harmony with what Mr. Wilson described as his company's desire to spread Unix widely in the educational and commercial sphere, with the result that, according to Mr. Wilson, very little, if any, of Unix is confidential any more. His testimony certainly matches what we saw in the unveiled USL-Regents Settlement Agreement, where USL was left with only a handful of files that no one needed any more and could live without happily ever since. SCO, however, has dug among the cobwebs and would like to point out that in this particular letter, AT&T was trying to keep certain code confidential. All right, but that is decades ago, and while SCO would like to turn back the hands of time, the world in fact moved on, and so did Unix. There has been a lot of water under the bridge since 1984, yet SCO creepily clings to the past like the eery Miss Havisham in her wedding dress, sitting at a table of stale cake in "Great Expectations".
This is a letter agreement where the parties are agreeing to some things and agreeing that they'll work out some other things later, and it's some kind of unusual arrangement for work on a particular project and covers only 2 CPUs, which AT&T distinguishes from DEC's other CPUs which are left under their prior license. So it's a special agreement, with another company entirely, not IBM, with terms of a completely different
license from either the educational or the commercial ones we've seen before.
It isn't at all comparable to IBM's license, so what it can possibly prove is a puzzlement. In particular, it doesn't have the "viral" "resulting materials" wording of Section 2.01 of the IBM license:
“Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.” This letter refers to clause 2.01, but note what it says about DEC's 2.01 clause: "If in creating the derivative work you use the code in a SOFTWARE PRODUCT or use methods and concepts from a SOFTWARE PRODUCT or a SUBLICENSED PRODUCT, and such derivative work does not include any of our code or otherwise embody any of our methods and concepts, you may consider that you have all right, title and interest to such derivative work and such derivative work will not be subject to the provisions of the referenced Software Agreement." Contrast this with SCO's position, stated baldly in the Memorandum, that all of AIX and Dynix are derivative works of Unix and that none of it can be donated to Linux:
"SCO does maintain that AIX and Dynix are subject to the restrictions of the licensing agreements because they are derivatives of UNIX, and consequently that IBM breached the license agreements by contributing to Linux any portion of those contractually-protected derivatives."
Evidently, SCO views AIX and Dynix in their entirety as being derived from UNIX, despite IBM, and Sequent, writing their own portions. Under this 1984 AT&T-DEC letter agreement, if it had anything to do with IBM, which it doesn't, IBM would own its own homegrown code and it would "not be subject to the provisions of the referenced Software Agreement". Isn't that what it says? Maybe SCO didn't notice that part. Probably it didn't read 12(d) either:
"DEC shall have the right to disclose any independently developed software which software is created without the use of or reference to AT&T Technologies proprietary and confidential information received under the referenced Software Agreement."
Isn't that pretty much what Mr. Wilson said? What's ours is ours and what's yours is yours? Even if SCO could find some discordant documents, where AT&T, as the judge in the BSDi case pointed out, didn't protect its code very well ("Version 32V source code has now been distributed,
without notice, to literally thousands of licensees.
Consequently, Plaintiff can have no valid copyright on 32V unless
it can fit within one of the statutory or common law escape
provisions. . . . Plaintiff cannot avail itself of any of these provisions."), despite periodic stabs in that direction, one of which resulted in the unfortunate (for USL) BSDi lawsuit, it isn't hard to figure out that you might find some small piece of apparently conflicting information if you go prospecting long enough and concentrate only on those periodic stabs.
I gather SCO is looking for any documents it can dredge up from those ineffective gestures in the direction of control, which might have worked if it weren't for the USL-Regents Settlement Agreement showing up and letting us know how it all worked out in the end.
The license refers to the SOFTWARE PRODUCT (whatever
that is exactly -- some references are made to documents and attachments we don't have) and to AT&T modifying it to
create a SUBLICENSED PRODUCT.
Also, because this is the middle of negotiations over 2 CPUs for a particular project which is being distinguished from all other CPUs, which DEC apparently had a license to, some of the references are unknowable without further information. For example, what do you make of this clause:
12. (a) AT&T agrees
that the same level of confidentiality that LICENSEE has agreed to
for previous UNIX Operating System products shall be continued with
the SOFTWARE PRODUCTS covered by the referenced Software Agreement. See what I mean? Without knowing what DEC earlier agreed to, this is a meaningless clause today. Needless to say, it's an unusual arrangement between DEC and AT&T back in 1984, which has absolutely nothing to do with IBM and nothing to do with the Linux kernel, which wasn't even in existence in 1984. Everything, as Mr. Wilson has testified, changed in 1985 anyway. Clause 12(b) makes reference to an attachment that specifies what was and what wasn't considered publicly known, but considering that we don't have the attachment and we're talking 1984, it seems irrelevant. Why, then, did SCO scrape the bottom of the file cabinet and submit this document? It's what they had.
*******************************
[Letterhead]
AT&T Technology Systems
[Address, Phone]
O. L. Wilson
Manager, Software
Sales and Marketing
September 5, 1984
MR.
LESTER S. GRODBERG
Digital
Equipment Corporation
[Address]
Dear
Mr. Grodberg:
Re:
Proposed Software Agreement SOFT-00092 Between
Our Companies
This
responds to your letters of August 15 and August 20, 1984 relating to
this referenced Software Agreement. The numbered paragraphs
correspond to the numbers in the attachment accompanying your letter
of August 15. We understand that Digital Equipment Corporation
(“DEC”) accepts AT&T’s current position on the
issues raised by Mr. Grodberg’s letter of August 15, 1984 to
achieve our mutual short term goal with the understanding that both
parties will enter into further negotiations to resolve these issues.
1, and 2. We understand
that you want the new agreement to cover only two CPUs that you have
identified: accordingly, the attached Supplements 1 and 2 name only
those two CPUs as DESIGNATED CPUs. It is agreed that licenses for
UNIX* System V, Release 2.0 and UNIX Documenters Workbench** Software
are granted for use on these two CPUs only for a fee of eight hundred
dollars ($800.00). This reflects a four hundred dollar ($400.00) fee
to upgrade both CPUs from UNIX System V, Release 1.1 to UNIX System
V, Release 2.0 and UNIX Documenter's Workbench** Software, and
distribution of the PDP 11/70 version, and a four hundred dollar
($400.00) additional distribution fee for the VAX 11/780 version.
These fees are in lieu of the right-to-use fees listed on the
Schedules attached to Supplements 1 and 2. It is understood and
agreed that the terms and conditions of the referenced Software
Agreement shall apply only to the two DESIGNATED CPUs and that the
terms and conditions of previous agreements shall apply only to the
two DESIGNATED CPUs and that the terms and conditions of previous agreements shall apply to the use of other CPUs
for which DEC is licensed. With respect to the two
DESIGNATED CPUs only, the referenced Software Agreement shall be
regarded as replacing all applicable previous agreements. The
SOFTWARE PRODUCTS licensed under the referenced Software Agreement
may not be used on any CPUs
______________
*UNIX
is trademark of AT&T Bell Laboratories.
**Documenter’s
Workbench is a trademark of AT&T Technologies.
1
MR.
LESTER S. GRODBERG 2.
except such two DESIGNATED
CPUs and will be made available only to those DEC employees involved
with the development of the UDA 50 driver. It is agreed that licenses
to use UNIX System V, Release 2.0 and UNIX Documenter’s
Workbench Software will be granted for other CPUs licensed under
previous agreements for UNIX System V, Release 1.0 and 1.1 at no
additional fee, provided that agreement can be reached on the terms
and conditions of such licenses.
3. Regarding Section 2.01
of the referenced Software Agreement, you do not have all right,
title and interest in derivative works based on a SOFTWARE PRODUCT if
such derivative works include any of our code or embody any of the
methods and concepts used in a SOFTWARE PRODUCT. Copies of such
derivative works may be furnished to customers as SUBLICENSED
PRODUCTS under a Sublicensing Agreement. If in creating the
derivative work you use the code in a SOFTWARE PRODUCT or use methods and concepts from a SOFTWARE PRODUCT or a SUBLICENSED PRODUCT, and such derivative work
does not include any of our code or
otherwise embody any of our methods and concepts, you may consider
that you have all right, title and interest to such derivative work
and such derivative work will not be subject to the provisions of the
referenced Software Agreement. If such derivative work does include
any of our code or embody any of our methods and concepts you may
have a property right in such derivative work to the extent of any
modifications that you have added, but the exercise of that property
right is subject to the terms of the Software and Sublicensing
Agreement, including to the restrictions on the use of the SOFTWARE
PRODUCT (for example, it must be kept in confidence).
4. It is not our practice
to ship software to a licensee until an agreement has been fully
executed and payment received by AT&T.
5. With Reference to
Section 4.01, we agree that consent by AT&T to export SOFTWARE
PRODUCTS for use on a DESIGNATED CPU of a SUBSIDIARY or other
licensee of equivalent scope will not be unreasonably withheld.
6. AT&T maintains a
listing of states which it believes apply sales and/or use taxes to
software licensed therein. Any such tax is reflected on the invoice
accompanying the software agreement. New York is not currently on
that listing.
2
MR.
LESTER S. GRODBERG 3.
7. We expect to keep
archive copies of SOFTWARE PRODUCTS we license. Thus, if your rights
under the referenced Software Agreement are ever terminated and you
are subsequently required to gain access to a SOFTWARE PRODUCT
licensed under such agreement, such access can be provided to our
archive copy under appropriate protective arrangements.
We are willing to consider
entry into an escrow agreement as you have described in your August
20 letter.
8. This point has been
dropped.
9. AT&T’s grant
of rights to modify SOFTWARE PRODUCTS under Section 2.01 does not
relate to patents. Under Section 7.01 AT&T’s grant of
patent licenses specifically excludes cases where the patent applies
because of a modification of the SOFTWARE PRODUCT.
10. AT&T Technologies
Software Sales and Marketing organization is not aware of any patent,
trade secret or copyright infringement action against AT&T
Technologies or its affiliates relating to the software covered by
the referenced Software Agreement.
11. Regarding section 7.01,
AT&T agrees that the permission referred to in this section will
not be unreasonably withheld if such permission is requested in
writing.
12. (a) AT&T agrees
that the same level of confidentiality that LICENSEE has agreed to
for previous UNIX Operating System products shall be continued with
the SOFTWARE PRODUCTS covered by the referenced Software Agreement.
(b) All portions of the SOFTWARE PRODUCTS
that have not been published shall be held in
confidence. The documents listed in paragraph 2 (a) in the Schedule
for UNIX System V, Release 2.0 except the System Release Description,
the Portfolio and the International Release Description are
considered to be published. None of the computer programs listed in
paragraph 3 of such Schedule are considered to be published. The
documents listed in Section 2(a) in the Schedule for UNIX
Documenter’s Workbench Software, except the System Release
Description, are considered to be published. None of the computer
programs listed in paragraph 3 of such Schedule are considered to be
published.
3
MR.
LESTER S. GRODBERG 4.
(c) As needed, we will
consent to disclosure to a consultant for limited purposes if the
consultant agrees to the same obligations of confidentiality and
other restrictions pertaining to the use of the SOFTWARE PRODUCT as
those undertaken by you under the referenced Software Agreement.
(d) DEC shall have the
right to disclose any independently developed software which software
is created without the use of or reference to AT&T Technologies
proprietary and confidential information received under the
referenced Software Agreement.
(e) On further
consideration we still are unwilling to set a time limit on
confidentiality or agree to a limit on financial liability.
13. The verification
process will be immediate in most cases and we expect it should never
be longer than two business days.
14. (a) and (b) This matter
is covered in the items 1 and 2.
(c) AT&T will give DEC
ninety (90) days notice prior to any price changes.
If
you agree with the above, please so indicate by signing and dating
the attached copy of this letter and returning such copy to us.
Very
truly yours,
AT&T
TECHNOLOGIES, INC.
By
___[Signature] ___
For O. L. Wilson
Title
Manager, Software Sales and Marketing
Date
September 5, 1984
ACCEPTED
AND AGREED TO:
DIGITAL
EQUIPMENT CORPORATION
By
__[Signature] __
Title
Vice President, Mfg. & Eng.
Date
September 18, 1984
|
|
|
|
| Authored by: Anonymous on Saturday, December 11 2004 @ 10:05 AM EST |
I know -- picky, picky.
[ Reply to This | # ]
|
| |
| Authored by: webster on Saturday, December 11 2004 @ 10:05 AM EST |
Well, PJ not only points out that this piece of evidence was ineffectual and
irrelevant, she goes on to analyze it and show where other parts of it actually
tend to support the IBM position in a consistent but irrelevant sort of way. No
wonder the SCOfolks think of GL so much. Their labors are exposed as false and
desperate.
---
webster[ Reply to This | # ]
|
| |
| Authored by: SerriaRomeo on Saturday, December 11 2004 @ 10:11 AM EST |
I can see the noose getting tighter. it will not be much longer before the trap
doors falls open and sco is finished.[ Reply to This | # ]
|
| |
| Authored by: fredex on Saturday, December 11 2004 @ 10:18 AM EST |
Why did they scrape the "bottom of the cabinet"?
Well, because they don't have anything else to show.
The theory appears to be that if you don't have evidence, drag your feet,
procrastinate, accuse, spew FUD, try to obfuscate the factual matters long
enough to confuse the judge and actually get a jury. juries are known to be
sympathetic to "poor, wronged parties", so they're hoping they can cry
a lot of tears in court and get a big judgement.
however, I don't think Judge Kimball is so dumb as to not see through it. He
strikes me as a pretty sharp cookie.
One can but hope that eventually the lengthy rope (at the end of which SCO is
free-falling) will reach its limit and give them a sharp yank. Perhaps in the
form of a PSJ (or two) or a dismisal with prejudice. Perhaps contempt of court
for having gamed the system.[ Reply to This | # ]
|
| |
| Authored by: joef on Saturday, December 11 2004 @ 10:29 AM EST |
I read the letter as being mostly about DWB, and only about the SysV upgrade as
a side issue. Perhaps the upgrade was necessary to support DWB. And maybe the
SOFTWARE PRODUCT whose methods and concepts were being protected was DWB. Just
what was the license for, anyway? Since this letter is in reply to a DEC
letter, why was it not produced as well? Doesn't context count a lot here?[ Reply to This | # ]
|
| |
| Authored by: jim Reiter on Saturday, December 11 2004 @ 10:41 AM EST |
This letter does nothing to establish TSG's ownership of
any part of Unix. We still need to resolve "What does TSG
own and how did they (TSG) come to own it?"
TSG could clear this all up by revealing what is in the
Exhibits that describe the contributed whatever which were
part of the Reorganization Plan/Merger Agreement which TSG
is hiding.
TSG is dead. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 11 2004 @ 11:26 AM EST |
Based on this letter then anything that HP has UNIX wise, or has donated to
LINUX is in danger?
SCO needs to examine what agreements were made more liberal after 1984.
And that is the rest of the story.
PS - Get Linkification extension to FireFox browser because it surrounds plain
text URLs with anchor tags... making text urls clickable!
[ Reply to This | # ]
|
| |
| Authored by: blacklight on Saturday, December 11 2004 @ 11:33 AM EST |
Unfortuntely for SCOG, the only interpretation of the AT&T contract that has
any weight is the one that takes the terms of the BSD settlement into account
and the one that takes the clear desire of the UNIX licensees not to have their
IP hijacked.
Unfortunately for SCOG, judge Kimball has a history of rendering decisions based
on the most reasonable interpretation of the facts and the law. The most that
SCOG can do is to prevent judge Kimball from doing his job, so I expect as a
delaying tactic a series of last minute motions from SCOG alleging new facts
that won't stand up to any subsequent examination.
I note that SCOG has an affinity for quoting out of context, be the context the
surrounding text, the intentions of the parties, the influence of a related
settlement, etc.[ Reply to This | # ]
|
| |
| Authored by: heretic on Saturday, December 11 2004 @ 11:35 AM EST |
What is somewhat interesting is that newSCO is able to "find and produce"
really old documents that, in their opinion, support their case, but are
completely unable to find more recent documents that are potentially fatal to
their case.
Is there anywhere a list of "expected" but not found
documents for this case, and what would they show ?
heretic[ Reply to This | # ]
|
| |
| Authored by: Simon G Best on Saturday, December 11 2004 @ 11:40 AM EST |
I've read your article, but not the letter (for I am a lazy man), and I'm
reminded of vacuous truth.
It sounds a
bit like all of the relevant methods and concepts were indeed protected - just
like The SCO Group claim - and that there was a total number of zero such
relevant methods and concepts (from what Mr Wilson is reported as having
said).
It's like how all the elephants in my left hand are playing the
violin. It's true, and there is not one, single elephant in my left hand that
isn't playing the violin. It's also true that none of the elephants in my left
hand are playing any musical instruments at all. Indeed, there is not one,
single elephant in my left hand that's playing, say, the violin. A
contradiction? Nah, it's just that there are no elephants in my left hand
anyway.
So, what about the relevant methods and concepts which The SCO
Group claim are protected the way they claim? Are their claims that all such
methods and concepts are protected true? Is it true that there are no protected
methods or concepts? If the total number of relevant methods and concepts is
zero, then both can be true.
From what you've reported, it sounds like
Mr Wilson is saying something similar. He is quoted as saying, "In fact, we
were not aware of any particular 'methods or concepts' that needed to be
protected. We made up this phrase as sort of a general catch-all." It's rather
like vacuous truth: it's true, and it applies to a total number of zero such
"methods and concepts".
Just thought it was an interesting way to look
at it for a brief moment :-)
---
Open Source - open and honest? Not
while the political denial continues.
[ Reply to This | # ]
|
| |
| Authored by: geoff lane on Saturday, December 11 2004 @ 12:32 PM EST |
"If you want a picture of the future of software patents, imagine a boot on
the foot of Darl McBride stamping in a human face...Forever." -- after
George Orwell
---
Invention and Innovation are not synonyms.
[ Reply to This | # ]
|
| |
| Authored by: kawabago on Saturday, December 11 2004 @ 12:46 PM EST |
Distribution rights to public domain software.
---
constructive irrelevance.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 11 2004 @ 01:00 PM EST |
It seems like only yesterday that you were complaining about " why they
keep harping on educational licenses in connection with IBM ".
But look who's harping today about BSDi here and BSDi there when SCO shows a DEC
document.
Surprised ?
[ Reply to This | # ]
|
- PJ, how quickly you forget. - Authored by: rm6990 on Saturday, December 11 2004 @ 01:16 PM EST
- Your point? - Authored by: manys on Saturday, December 11 2004 @ 01:27 PM EST
- You suggest the BSD settlement isn't important - Authored by: Anonymous on Saturday, December 11 2004 @ 04:27 PM EST
- PJ, how quickly you forget. - Authored by: Khym Chanur on Saturday, December 11 2004 @ 04:42 PM EST
- So you have trouble with multiple threads. - Authored by: Anonymous on Saturday, December 11 2004 @ 05:13 PM EST
- BIFF, how quickly you lie, misdirect, torture & obfuscate - Authored by: skidrash on Saturday, December 11 2004 @ 05:21 PM EST
| |
| Authored by: PolR on Saturday, December 11 2004 @ 01:33 PM EST |
We have here a successor in interest that disagrees with the people in charge at
the original company on what is the original interest. This simple description
is telling. SCOG wants to rewrite history.
[ Reply to This | # ]
|
| |
| Authored by: arch_dude on Saturday, December 11 2004 @ 01:41 PM EST |
This agreement is for two computers that were used in conjunction with
development of the "UDA 50 driver." It's clear that this is is a bit
strange, as it is an add-on to DEC's more general agreement to use UNIX as part
of its product.
OK all you old Groklaw programmers:
Can anyone throw any light on a DEC development project for the "DEC UDA
50 driver" in 1984?
As someone else points out, the contract seems to focus mostly on the
"workbench" tool, with UNIX as a afterthought.[ Reply to This | # ]
|
| |
| Authored by: rsteinmetz70112 on Saturday, December 11 2004 @ 01:55 PM EST |
SCOG keeps arguing that somehow IBM contributed Unix "methods and
concepts" to Linux, yet the IBM contributions are all clearly concepts and
methods developed by IBM, added by IBM to IBM's proprietary version of Unix
(AIX), among other products including OS/2. These methods and concepts were in
some cases patented (RCU) and in others licensed back to ATT (SMP) for inclusion
in Unix, but they all originated with IBM.
Even if you grant SCOG's interpretation, for the sake of argument, what Unix
"method or concept" has IBM contributed to Linux or improperly
revealed?
Pointing out the obvious to keep our eye on the ball. SCOG seems to be trying to
manufacture a question of fact out of a dubious question of law, the meaning of
the contracts. IBM submitted the evidence of the declarants to butress their
reading ot the plain words of the contract.
SCOG is making irrelevant arguments about points not even at issue in SCOG's
complaint. In fact IBM has explicit permission to make use of Unix "methods
and concepts", according to Letter Agreement (AT&T and IBM) of February
1, 1985 [291 - Exhibit 12] "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 ..."
Brings you right back to what Unix code was put in Linux?
---
Rsteinmetz
"I could be wrong now, but I don't think so."[ Reply to This | # ]
|
| |
| Authored by: tredman on Saturday, December 11 2004 @ 02:11 PM EST |
Perhaps SCO feels it can't find sufficient living people to
agree with their interpretation of the license... PJ, I began
to read that sentence, and thought for a second that you were suggesting that
SCOX was going to convene a seance. The worst part about it was that I really
wasn't suprised or taken back at all. I don't recall who, but somebody here used
to have a signature that said something to the effect of "Just when I thought
SCOX couldn't do anything to shock me...". Tim [ Reply to This | # ]
|
| |
| Authored by: ChrisP on Saturday, December 11 2004 @ 02:31 PM EST |
Have the signitures been redacted for some reason? David W. Frasure signed for
AT&T on Mr. Wilson's behalf. (His name appears in the article anyway.)
Cross-checked with SOFT-00015/IBM-25-A.pdf.
When it's available, exhibit IBM 291-26 might shed more light on this DEC
letter.
---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 11 2004 @ 04:03 PM EST |
| "If in creating the derivative work you use the code in a SOFTWARE PRODUCT or
use methods and concepts from a SOFTWARE PRODUCT or a SUBLICENSED PRODUCT, and
such derivative work does not include any of our code or otherwise embody any of
our methods and concepts, you may consider that you have all right, title and
interest to such derivative work and such derivative work will not be subject to
the provisions of the referenced Software Agreement."
BLAM!
[ Reply to This | # ]
|
| |
| Authored by: oldgreybeard on Saturday, December 11 2004 @ 05:30 PM EST |
Does this mean that the house I bought in 1972 is still mine?
I have a copy of the deed and a copy of the paid off note ;)
I also have the same for the house I bought in 1980 and IIRC the house I bought
in 1992.
Whadda ya mean NO, just because I sold the '72 house in '80 and the '80 house in
'99 ? But how can that be I still have paperwork showing that I owned them.
Sort of like having checks in the check book but no money in the account ;).[ Reply to This | # ]
|
| |
| Authored by: Brian S. on Saturday, December 11 2004 @ 06:25 PM EST |
SCO's Michels Blasts 'Punk Kids' Linux'
News Story by
Joseph E. Maglitta
APRIL 26, 1999 - "It's weird," said Doug Michels,
president and CEO of The Santa Cruz Operation Inc. (SCO) in Santa Cruz, Calif.,
which owns the rights to Unix. "We won the war. We beat the minicomputers.... We
still think of ourselves as rebels, but we're boring establishment
now.".................... A: Linux didn't break any new ground. They took the
[application programming interfaces] of Unix and re-engineered that lightweight
kernel that implemented those APIs......................
[Then there's] the
whole intellectual property issue. The last thing they want is some kid from
Norway to sue for $100 million for misappropriation of intellectual
property...............
Computerworld April 1999
Brian S. [ Reply to This | # ]
|
- Santa Cruz - SCO Bulletin (1999) - Authored by: Brian S. on Saturday, December 11 2004 @ 06:53 PM EST
- MTI, Caldera and Canopy -July 1999 - Authored by: Brian S. on Saturday, December 11 2004 @ 07:06 PM EST
- "Caldera Plans to Keep UnixWare Proprietary " - August 2000. - Authored by: Brian S. on Saturday, December 11 2004 @ 07:32 PM EST
- Michels on the Tarantella "virtual start-up" - August 1998 - Authored by: Brian S. on Saturday, December 11 2004 @ 08:21 PM EST
- "Intel and IBM save SCO, says Michels" - October 1998 - Authored by: Brian S. on Saturday, December 11 2004 @ 08:32 PM EST
- Santa Cruz - The beginning and Doug Michels - 1979 - Authored by: Brian S. on Saturday, December 11 2004 @ 08:43 PM EST
- Caldera, Ransom Love, Novell, Ray Noorda and SCO or SCO. - Authored by: Brian S. on Saturday, December 11 2004 @ 09:19 PM EST
- SCOG related Press Releases from the Wiki. - Authored by: Brian S. on Saturday, December 11 2004 @ 09:28 PM EST
- M$ "does a job on Santa Cruz" and an early "connection" with Caldera - 1997 - Authored by: Brian S. on Saturday, December 11 2004 @ 10:00 PM EST
- The Microsoft "job on Santa Cruz" 1996-1997 - Authored by: Brian S. on Saturday, December 11 2004 @ 10:33 PM EST
- All roads lead to ? NT - Authored by: Brian S. on Saturday, December 11 2004 @ 11:01 PM EST
| |
| Authored by: heretic on Saturday, December 11 2004 @ 07:25 PM EST |
Interesting article from Practical
Technology commenting on the sale of the SCO (oldSCO) sale of its Unix
division to Caldera:
SCO also will retain its
highly valued Tarantella, a popular application service provider
(ASP) division, and the SCO OpenServer revenue stream and
intellectual properties. In the last quarter, SCO OpenServer
revenue amounted to $11.1 million. After expenses, the net proceeds to SCO
will be approximately 55 percent of future SCO OpenServer revenues. The
investment banks of Chase H&Q for SCO and Broadview for Caldera Systems
helped arrange the deal.
heretic
[ Reply to This | # ]
|
| |
| Authored by: greybeard on Saturday, December 11 2004 @ 07:54 PM EST |
FWIW, I am guessing that the DEC mystery license had something to do with their
brief romance with MIPS.
It is also worth recalling that DEC and AT&T/USL always had a sort of
love/hate relationship. DEC was one of the leaders and instigators of the
revolt of UNIX licensees over the changes AT&T/USL wished to bring into the
SVR3 and forward licenses. However, AT&T was DEC's biggest and most
profitable customer according to the trade press. The dissidents (the Hamilton
Group, after the street on which DECWest was located) raised a ruckus for quite
a while. Eventurally, the most disaffected formed the nucleus of OSF whose UNIX
knockoff became the base of DEC's subsequent "unix" products.
---
-greybeard-[ Reply to This | # ]
|
| |
| Authored by: codswallop on Saturday, December 11 2004 @ 08:55 PM EST |
| I don't think SCO's lawyers are as clueless as PJ's analysis makes them out to
be. I can't say I understand everything they're planning, but there are
indications of some things.
1) They want to establish that the concepts and
methods language was standard in commercial agreements of the period of IBMs.
They've made a good case it was.
2) They want to establish that it meant
what Otis Wilson said it did in the Berkeley deposition and what Jeremy Evans
said it did in his declaration. They've done OK with that. USL attempted to
enforce the methods and concepts restrictions in 1992 that Otis Wilson now
testifies were obsolete. Saying one license was commercial and one educational
doesn't help unless you can show differences that matter to the issue in
question.
3) They want to attack the validity and/or meaning of the letter
agreement. Mr. Pfeffer declared:
I do not recall any instance
during my tenure in which either AT&T or USL agreed (in any license
agreement or supplement or modification thereof) to reduce its protection under
a UNIX license to prevent the unauthorized use or disclosure of only source
code. Any such change would have been a significant and material change to the
standard terms of AT&T's license agreement and, in 1985, clearly would have
required my, or to a lesser extent Burt Levine's, approval. I do not recall any
such proposed or actual modification to the standard license
agreement.
The letter agreement was signed by David Frasure
for Otis Wilson. They may argue he didn't have the authority to change the
terms. This sounds weak to me, but it would improve SCO's case considerably, and
it might be a matter of fact in dispute. This would block summary
judgement.
4) They intend to argue that one or both of the amendments don't
apply to the Sequent code
any agreements (including any side
letter agreements) that AT&T entered into with one of its UNIX licensees
would have no legal effect on the contractual obligations of AT&T vis-à-vis
any of its other UNIX licensees.
Silver isn't a bozo, and he's
not going to roll over. Even if he wins all the above, he hasn't much of a case,
but he has to try something other than whining overlength memoranda.
He
should be able to block summary judgement on the contract claims. I'm sure IBM
knows this. They're probably hoping for findings of fact that hem SCO in, and
they're likely to get them, given the way I expect Judge Kimball feels about
them at this point.
---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, December 11 2004 @ 10:11 PM EST |
GIVEN (from "UDA(4) UNIX Programmer's Manual" as found at Google's
cache of http://www.mit.edu/afs/athena/system/rt_aos4/srvd.77/usr/man/cat4/uda.4
as retrieved on May 27, 2004 07:40:53 GMT.): This is a driver for the DEC UDA-50
disk controller and for other compatible controllers. The UDA-50 communicates
with the host through a packet oriented protocol termed the Mass
Storage Control Protocol (MSCP). Consult the file <_ v_ a_ x/_ m_ s_ c_ p._
h> for a detailed description of this protocol.
It seems to me that this is a special (and cut rate price) license for 2 VAX
machines to develop a UNIX device driver for the UDA-50 disk. No other use is
allowed, hence the low $hundreds vs. $10Thousands per CPU that others need to
pay and the special restrictive languange that is waived for others.
Take note of 12a-e but especially 12d.
Note also that this applies ONLY to these 2 VAX machines and not to any others
that DEC may have had.
[ Reply to This | # ]
|
- Erhum - Authored by: Anonymous on Sunday, December 12 2004 @ 01:31 AM EST
| |
| Authored by: heretic on Saturday, December 11 2004 @ 10:38 PM EST |
Isn't it interesting that Tarantella and IBM are doing business on Linux
applications ;-)
For more information on the Tarantella and
IBM offerings, please visit the newly created IBM section of the Tarantella web
site. Link
he
retic [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 12 2004 @ 05:13 AM EST |
In an flash of vision I imagine Darl, when a truckload of Unix-Licenses arrives
at his office (he still keeps them there AFAIK). He looks through them, reads
the language without botthering to check for side-conditions and says "Doh!
We own everything! Let's get rich!"
TToni[ Reply to This | # ]
|
| |
| Authored by: fudisbad on Sunday, December 12 2004 @ 05:22 AM EST |
Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".
Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.
PJ says you must be on your very best behavior.
If you want to comment on this thread, please post under "OT"
---
FUD is not the answer.
FUD is the question.
The truth is the answer.[ Reply to This | # ]
|
| |
| Authored by: PeteS on Sunday, December 12 2004 @ 06:30 AM EST |
| As noted in a number of threads, there are issues SCOG is silent upon, because
the relevant documents are not attached or sealed (although the only reason to
seal them would be to spare SCOG embarrassment).
Of course, they pick and
choose the parts of the text they like (not that that tactic is new for SCOG),
but that won't avail them here (Judge Kimball already told them that, but be
sure they will try and use this again)
As a recap of a few threads, here's
what I see.
1. This license does specifically state that code
embodying methods and concepts (not necessarily actual SVR2 code) would not
necesarily be DECs to use as they wished. Note that this is silent on the use
of SVR1.1 for which DEC already had a license. More on this
below.
2. This license specifically mentions the UDA-50 driver
work.
3. Only 2 CPUs were licensed.
4. The fee for the
upgrade was $800.00 total. This may be a pittance to the
normal cost of an SVRx license, but as it's an upgrade and also seemingly for a
specifically limited type of work, that argument may not fly. Without another
upgrade license to compare it to, I really can't even hazard a guess.
Now
for some rebuttals
Here is some relevant text from the letter with my
comments underlined within the text:
This reflects a four hundred dollar
($400.00) fee to upgrade both CPUs from UNIX System V, Release 1.1 to UNIX
System V, Release 2.0 and UNIX Documenter's Workbench** Software, and
distribution of the PDP 11/70 version, and a four hundred dollar ($400.00)
additional distribution fee for the VAX 11/780 version.
So this was
specifically for an upgrade from an existing license.
These fees are
in lieu of the right-to-use fees listed on the Schedules attached to Supplements
1 and 2. It is understood and agreed that the terms and conditions of the
referenced Software Agreement shall apply only to the two DESIGNATED CPUs
and that the terms and conditions of previous agreements shall apply to the use
of other CPUs for which DEC is licensed. With respect to the two DESIGNATED CPUs
only, the referenced Software Agreement shall be regarded as replacing all
applicable previous agreements. The SOFTWARE PRODUCTS licensed under the
referenced Software Agreement may not be used on any CPUs.
So this
restricted (and possibly cheap) license did not replace existing licenses except
on the development machines that were specifically listed (mentioned in the
first paragraph).
With respect to the two DESIGNATED CPUs only, the
referenced Software Agreement shall be regarded as replacing all applicable
previous agreements. The SOFTWARE PRODUCTS licensed under the referenced
Software Agreement may not be used on any CPUs except such two DESIGNATED CPUs
and will be made available only to those DEC employees involved with the
development of the UDA 50 driver.
Here we get the reference to
the UDA-50 driver. This license was clearly not even for 'internal business use'
(the usual agreement) but simply for development work so DEC could sell hardware
into the UNIX market.
It is agreed that licenses to use UNIX System
V, Release 2.0 and UNIX Documenter’s Workbench Software will be granted for
other CPUs licensed under previous agreements for UNIX System V, Release 1.0 and
1.1 at no additional fee, provided that agreement can be reached on the terms
and conditions of such licenses.
And they'll throw in Documenter's
workbench for no additional fee after haggling over the terms and
conditions.
All in all, this really does not help SCOG, even standing
on it's own without the other references. This license is, of course, placed
into the record to try and show the 'methods and concepts' were protected, but
this license has no material similarity to the type of license used by IBM or
even DEC for their internal business use or
sublicensing
PeteS
---
Artificial Intelligence is no match for
Natural Stupidity [ Reply to This | # ]
|
| |
| Authored by: blacklight on Sunday, December 12 2004 @ 10:18 AM EST |
"We understand that you want the new agreement to cover only two CPUs that
you have identified: accordingly, the attached Supplements 1 and 2 name only
those two CPUs as DESIGNATED CPUs"
What is SCOG up to: trying to create the implication that a customized agreement
with DEC that covers only two of DEC's CPUs is to be interpreted as standard for
all UNIX licensees and all their CPUs?[ Reply to This | # ]
|
| |
| Authored by: PJ on Sunday, December 12 2004 @ 06:47 PM EST |
| Just so you know: there was a troll who
left a link (twice actually)
pretending to be upset about a website smearing
me and Groklaw. The individual
sent me
a threat
earlier today that said the site would stay up unless I
removed some content
on Groklaw.
I see no reason to allow trolls to ruin
our atmosphere here, whatever they do
elsewhere. For that reason, I have
removed all references to the site,
although I think
the responding comments
left were very, very helpful and probably led to the
site being
taken down. In
any case, it's no longer there, I'm told. If you feel I should
restore them,
consider the source and all that is involved, but I'm open to
suggestions.
I also removed the thread because I was informed that you
couldn't see
anything on the site unless you allowed cookies, and I don't want
to be
responsible for any of you who
go there being recorded by someone who
appears to me to be
connected to SCO or favorable to their cause, judging by
the comments he
regularly leaves on Groklaw "anonymously", although he claims
otherwise
elsewhere. I
have
retained all the information however. Just
a disgusting episode. It
seems
when SCO decided not to put up an antiGroklaw
site at the last minute, others
took up the
baton, but their handiwork is so
offputting, from all I've heard, it is seriously
backfiring for one
and all. [ Reply to This | # ]
|
| |
| Authored by: BitOBear on Sunday, December 12 2004 @ 06:58 PM EST |
--quoted-- Regarding Section 2.01 of the referenced Software Agreement, you do
not have all right, title and interest in derivative works based on a SOFTWARE
PRODUCT if such derivative works include any of our code or embody any of the
methods and concepts used in a SOFTWARE PRODUCT. --quoted--
This is not a statement contradictory of anything in the IBM position. The key
word is, of course, all. This paragraph says (to me, IANAL) that when you
derrive from their (AT&T) base, you don't own the whole derrived thing. The
lay translation is "if you make something else of this, you cant claim all
of it as completely you own."
This is different from the assertion that when you derrive from their (AT&T)
base, you give your rights to them (AT&T).
This is in perfect harmony with the "you own your work, while we still own
our part" explination that has been advanced and maintained by the not-SCO
camp.
I would say that the _absence_ of any kind of delecration of some sort of
forfiture makes this one of the many "but our (AT&T) stuff persists in
remaining ours." That is, the absense of "and your stuff becomes ours
too" makes this harmless elaboration of the obvious.[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, December 12 2004 @ 07:23 PM EST |
In 1984, IIRC the world of IT was entering a Unix inspired period of great
change.
Prior to 1884 AT&T were on the verge of being broken up by the US Justice
dept. In 1984 a consent decree forced AT&T to spin off the 7 companies
commonly known as the Baby Bells. http://www.hedge-hog.com/sub/babybells.html
AT&T remained owner of Bell Labs (which was the developer of UNIX, which in
turn was originally licensed thru another AT&T company, Western Electric.
Around 1984 it was deeply feared in the computer industry that AT&T would
use its massive size & influence to barge its way into the computer industry
which it had previously been barred from entering. Even IBM, as big as it was in
IT in the early 1980s, was dwarfed by AT&T.
Some historical perspective follows. IBM has had a long association with Unix
that few people know about. In fact it is near impossible to find any useful
info on a project between Bell & IBM in the late 1970s, to port Unix to a
360/65 mainframe. I published a large document on this project in the early
1990s while still at IBM. I have no way now of tracking it down. The IBM
participants believe they made a major contribution to Unix being able to handle
serious multi-tasking, as a direct result of this hidden project (more below).
Some of the visible fear of AT&T centered on AT&T's ownership of UNIX
& how Unix had become an almost overnight cult phenomenon in the industry
(1980-1984+).
In the mid 1980s IBM had began severla projects to use Unix but until AT&T
gave its categoric assurance that it wouldn't use its then ownership of Unix, to
seek domination in the computer industry, a war raged.
The 'Unix wars' triggered a polarisation that pitted several established IT
vendors (IBM HP DEC ICL etc:) against 'new wave' IT companies who adopted
AT&T's new commercialised Unix System/V as a basis for various types of
computers built from commodity microchips. Unix allowed a very quick start for
any new hardware startup. The new companies leaned towards AT&T while the
older companies wanted an AT&T free Unix. These two factions became known as
UI (Unix International) and OSF (Open Software Foundation). At the time there
were really two core UNIX versions. BSD Unix and AT&T Unix. AT&T had
attempted to regain control of Unix by introducing Unix System/V. OSF based its
plans on BSD variants plus others such as Rick Rashid's MACH from CMU. MACH had
an enormous impact of Unix variants of that period. Had AT&T not finally
relinquished its control of System/V, then I am sure MACH variants would rule
today.
Going back to the late 1970s - Unix & IBM ...
In the late 1970s IBM had worked with Bell Labs at Piscattawy NJ, to develop a
multi-tasking version of UNIX that ran on a large IBM 360/65 mainframe. IBM
provided a virtual machine environment (part of its TSS project IIRC) on which
Bell Labs employees along with IBM advisors created a mainframe UNIX. It was a
very successful port but got scuttled when IBM marketing people turned down a
Bell request for IBM to release the system as a commercial product. Bell offered
to buy about 14 of these large systems to be used as data switches but when IBM
pulled out Bell somehow ended up with a DEC port and the DEC name (even if DEC's
Ken Olsen fought against Unix) then became associated with Unix. Ken Olsen was
committed to VMS and did not want to see Unix undermine it. He is the person who
prompted the famous Unix devotee's quote "DEC supports Unix like a rope
supports a hanging man".
Anyway, the point I am wanting to make is that the relationship between AT&T
and other companies changed dramatically in 1984 when AT&T and the 'Baby
Bells' emerged as a result of the AT&T breakup. But, in fact, things were
very prickly between IBM (+ the other established players) and AT&T in the
1980s and remaind so until just before AT&T spun off the Unix company called
USL (Unix Software Laboratories) in 1991.
http://www.bell-labs.com/history/unix/moveson.html
At the time USL was spun off, some of its shares were sold to at least 11 other
computer companies. This was AT&T's final acknowledgement that its foray
ito computing had dome more harm than good. Microsoft had taken advantage of the
Unix wars to develop and push forward its VAX like OS, 'WinNT'.
As a participant in Unix in the IT industry, from 1981 (Unix version 7) I was
well aware of the victory which break AT&T's control of the Unix OS. But as
best as I can recall that occured late in the 1980s & into 1991. At that
time AT&T stated that it would allow licensing of Unix System V+ on the
basis that there would be no lock in. I am not clear that such sentiments would
have been obvious in 1984. But the interesting thing is that from 1984 on IBM
licensed several Unix variants that it released as AIX. (Before AIX/370 and
AIX/ESA came out, IBM had a project called IX/370 based on another a 3rd party
Unix project).
AIX/370 was 3rd party & ran on mainframes (I was IBM Asia Pacific product
manager for it), AIX Version 2 (also called AIX/RT)was a 3rd party Unix port but
redeveloped to run on IBM's 6150 RTPC which had a Virtual Machine called the
VRM. This was in the mid to late 1980s, AIX/PS2 was a another 3rd party version
that ran on PS/2 computers in the late 1980s, AIX/3 (also called AIX/6000) was
the version based on Unix System/V that was added to extensively by IBM. It was
not related to AIX/2. I am sure AIX/3 only came out after USL had been formed.
It is what most people think of today when saying IBM AIX.
Doug Marker
[ Reply to This | # ]
|
|
|
|
|
