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APA's "Included Assets" Did Not List SVR4.2 - Research Project - Updated 4Xs |
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Saturday, March 20 2010 @ 02:48 PM EDT
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A reader asks a question I can't answer, but maybe some of you can. In reading the APA [PDF][text], he noticed something odd. The schedule of "included assets", Schedule 1.1(a), doesn't include UNIX SVR4.2. Can you take a look with me? I'll show you what I've found so far.
Update: While I'm researching this topic, I came across something else about patents, which Darl McBride testified he never licensed. Aside from Microsoft, of course, who claimed they'd gotten a license to patents. And what I just found is this press release about SCOsource, dated January 22, 2003, which does in fact list patents: SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original UNIX source code. SCOsource will manage the licensing of this software technology to customers and vendors.
"SCO is the developer and owner of SCO UnixWare and SCO OpenServer, both based on UNIX System V technology," said Darl McBride, president and CEO, The SCO Group. "SCO owns much of the core UNIX intellectual property, and has full rights to license this technology and enforce the associated patents and copyrights. SCO is frequently approached by software and hardware vendors and customers who want to gain access to key pieces of UNIX technology. SCOsource will expand our licensing activities, offering partners and customers new ways to take advantage of these technologies." But they had no Unix-related patents at all. Obviously people assumed they did, because Darl said SCO did.
Here's the list in the document of what was included:
A. UnixWare 2.0 as described in the UnixWare 2.0 Licensing Schedule and those products listed as "prior" products on such schedule (includes source code updates where appropriate - i.e. UnixWare product family).
B. UNIX SVR4.1 ES as described in the UNIX SVR4.1 ES Licensing Schedule and those products listed as "prior" products on such schedule.
C. UNIX SVR4.0 MP as described in the UNIX SVR4.0 MP Licensing Schedule and those products listed as "prior" products on such schedule.
D. Ancillary SVRx Products (a final list of which shall be developed by the parties prior to the Closing)
No SVR4.2. Isn't that odd? Later the APA lists the contracts relating to SVRX licenses, and you do find "UNIXx System V Release 4.2 MP, Intel386 Implementation" on the list, with three other types, International Edition, for example. So it wasn't a "future" version. Here's an article from 1992 about it, published in SCO Magazine. And the Open Group's history of Unix tells us that it was released in 1992, and that "In December Novell ships SVR4.2MP , the final USL OEM release of System V." And Section 4.16(b) of the APA, listing licenses, has SVR4.2. But that's licenses, involving the royalty payments. And the included section lists "IV. All copies of Unix and UnixWare, wherever located, owned by Seller." But that's not the same as transferring ownership of anything but a copy of it, as I read it. I mean, if I contract with you to give you all copies I own of Microsoft Windows, I would collect all the boxes and hand them to you, but that wouldn't make you the owner of Microsoft Windows. Not even if I were Microsoft, I don't think. Then in the excluded assets section, it specifically says anything not on the Schedule 1.1(a), the included assets, is not transferring. I wonder how we could have read that a zillion times and never noticed? Next time one of the lawyers forgets something in the trial, let's empathize. I guess that's the lesson. But what is the explanation for it not being on the list? This is the only version this trial is supposedly about, I thought. The SCOsource Linux license was allegedly, according to SCOForum 2003's slide 26 [PDF], for a license to UnixWare 7.1.3. I wish I'd noticed that slide when they were debating what SCOsource was for. Judge Dale Kimball said [PDF] it was indemnification, which it was also, but the slide says: Provides an end-user license for SCO's UnixWare 7.1.3 product for use in conjunction with any Linux offering - structured as a binary, run-only, per CPU license. I guess this is what it means, that God is in the detail. Ah, the human condition. We can't ever get everything right. Not even judges. But my point is, wasn't the code comparison, one of them, SVR4.2? I'm going to take a look at other versions of the APA and the later changes, but I thought I would put this out there, so you brainiacs can help me research. Because if it really isn't included, then even if Amendment 2 were deemed to have transferred the other copyrights, which I don't think it did anyway, but even then SVR4.2 wouldn't transfer.
Here's Amendment 1, dated December 6, 1995, where they in fact edited the included assets section, but they still didn't add 4.2. They added: UNIX System V Release 4.2 European Language
Supplement, Version 1
UNIX System V Release 4.2 MP Japanese Extension
Oh my. Signed by Duff Thompson and Alok Mohan. I can just see the next 7 years, with them and their buddies telling us it was left off by mistake, but their *intent* was that it should transfer, and they'll parade paralegals and best friends of CEOs to prove it, too. Here's why Japan might have been handled differently, if you are curious, some local needs that were very different from the rest of the world. Here's the TLA, also signed by them. No 4.2.
Here's Amendment 2. No change to included assets, signed by James Tolonen and Steven Sabbath on October 16, 1996. And here's the Bill of Sale, which says, "Seller does not sell to Buyer and Buyer does not purchase from Seller any interest in any of Seller's assets other than the Assets." Finally, here's the Operating Agreement [PDF], which says Santa Cruz was to work on a merged product, with Novell providing some APIs and other things, and the merged product was to be based on just one product (UnixWare or OpenServer) to minimize the costs to produce it. The idea back then was to merge the two. And on page 2 it says UnixWare 2.1 ("Eiger") and (OpenServer Release 5.1 ("Comet") "will be used as the basis of the Merged Product." Might that be the reason no one put SVR4.2 on the list? I don't know. I know I hate finding things at the last minute, because you don't have time to thoroughly check every last detail, but perhaps some of you will be able to shorten the time by remembering things not immediately obvious from the documents. What am I missing?
Update: Take a look at Exhibit 9 to Tor Braham's Declaration. The exhibit is the term sheet, the business guy's understanding of the deal. It also does not list SVR4.2. Here's an intriguing paragraph: Novell Proposal - Modified 9/10 (not reviewed with SCO): Novell feels that it is critical to satisfy Novell's UnixWare customer investments and therefore the above migration plan must be followed after the Comprehensive Agreement is signed. Therefore, in order to be assured that the plan is followed, Novell proposes that Novell have the option to similar rights and technology (as it existed on the effective date of this agreement) to additional third parties if the plan is not met by SCO. In addition, Novell proposes that if the Merged Product plan is not met, Novell will increase the NetWare related per copy fees (TBD).
Might it be that Novell retained whatever it thought it would need if SCO fell down on the job, particularly in light of Novell's fears for SCO's survival as a company? The "technology as it existed" would be SVR4.2. Might that be the explanation for retaining it? Plus, SCO was to merge UnixWare and OpenServer, so would it have needed SVR4.2? Might that explain the odd language of Amendment 2?Update: And on the subject of need, a reader points out that Darl McBride testified that SCO only needed the copyrights for SCOsource, but the Hon. Dale Kimball ruled that the SCOsource licenses were not about SVRx copyright infringement, what does SCO need copyrights for? Here's what the judge ruled, and it was not appealed:
Because the SCOsource licenses cannot be construed to include a release of SVRX copyright infringement, the court does not find the licenses to be SVRX Licenses that generated SVRX Royalties to Novell under the APA.
So SCO doesn't need the SVRx copyrights for SCOsource either.
Here's the Open Group's Single Unix Specification History and Timeline [PDF], and you can see that 4.2 was released in 1992; 4.2MP in 1993.
Update: This might explain some things, an article about Caldera buying Unix assets:
The primary assets gained by Caldera in the transaction are the UnixWare product line and the source code to UNIX itself. Both have a long history, and to some extent the transaction returns UnixWare and UNIX to earlier roots in Utah.
UnixWare, as a viable commercial product, was born from the acquisition of UNIX Systems Laboratories (USL) and the UNIX source code by Novell, Inc. in 1993. UnixWare was the first version of UNIX based on the UNIX System V Release 4 (SVR4) source code for Intel platforms. (Other UNIX variants, such as SCO's products, predated UnixWare but were based on earlier versions of the UNIX source code.) SVR4, in turn, was the result of years of wrangling between proponents of earlier versions of UNIX and was an effort by AT&T, the original developer of UNIX, and Sun Microsystems to merge the System V and BSD lines of the family. That effort triggered considerable in-fighting within the commercial UNIX community and resulted in the formation of competing industry consortiums promoting different agendas. That's from the artice "Caldera Buys UNIX" by Ralph Barker. It seems not to be on the Internet any longer, but I saved a copy years ago, and it was originally published on HP World News. There was a graphic HP let me use on Groklaw, which is why I saved the article. The article explained the separation of the code bases like this:
There were essentially three UNIX camps in the early 1990s: the SVR4 camp with the AT&T-owned USL and Sun leading the pack; the proponents of so-called Berkeley UNIX, 4.x BSD coming out of the computer science department at the University of California, Berkeley; and a group of vendors whose UNIX products were based on earlier versions of UNIX System V, including HP and IBM.
Concerns over potential market advantages that might accrue to Sun as a result of the partnership with AT&T in developing SVR4, combined with substantial increases in the licensing fees for SVR4 being demanded by USL in an effort to make a profit from the OS, largely made the three-way split permanent. Although AIX and HP-UX have since adopted many of the features of SVR4, their respective code bases remain tied to earlier versions of System V that resemble BSD UNIX in many ways. Here is the graphic that HP gave me permission to use, and you can see the HP-UX does not trace originally from SVR4.but got some elements, but they got the elements from SVR4 but I don't see 4.2, and not off of Caldera UnixWare. Just saying. And their article says IBM AIX was like HP's:
So I guess the question would be, who actually does own the copyrights? Sun is a contender. So is BSD.
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Authored by: Erwan on Saturday, March 20 2010 @ 02:55 PM EDT |
If any.
---
Erwan[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 03:04 PM EDT |
If Novell still owns 4.2 and all of its accompanying IP, than it still owns all
of the underlying IP to all of UNIX and there is no case. Period. The only
thing the APA could be is a development and marketing agreement. The payment
would be an entry fee.
Am I just missing a few marbles?[ Reply to This | # ]
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Authored by: sk43 on Saturday, March 20 2010 @ 03:15 PM EDT |
Yes, I noticed this quite a while ago. It is ironic because SCO used System V
R4.2 MP for its copyright comparison with Linux.
The list of products on Schedule 1.1(a) is take almost verbatim from the TERM
SHEET, Exhibit 9 to the Declaration of Tor Braham [Novell-281-9], page 5,
section C. This term sheet is probably what the business negotiators (Ed
Chatlos, Ty Mattingly et al.) produced and delivered to Tor Braham et al. at
Wilson Sonsini to turn into the formal APA.
Why was it left off? Probably an oversight. Doubt it was done deliberately.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 03:16 PM EDT |
IANAL, but I am just wondering if Novell could raise this now ? Were there some
hard deadlines earlier in the processes that bar this now ?
Also, if this omission is brought into the record now, doesn't it partially
support SCO's assertion that the APA isn't the whole story, and the intent needs
to be considered too ?[ Reply to This | # ]
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Authored by: perpetualLurker on Saturday, March 20 2010 @ 03:19 PM EDT |
We seem to be missing some comment sections today!
---
"Clothes make the man. Naked people have little or no influence on society." --
Mark Twain
[ Reply to This | # ]
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Authored by: perpetualLurker on Saturday, March 20 2010 @ 03:21 PM EDT |
....Anything ELSE of interest this weekend besides
discussing the state of the court proceedings?...
......pL......
---
"Clothes make the man. Naked people have little or no influence on society." --
Mark Twain
[ Reply to This | # ]
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Authored by: DaveJakeman on Saturday, March 20 2010 @ 03:38 PM EDT |
I can think of a good reason not to. [ Reply to This | # ]
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Authored by: Guil Rarey on Saturday, March 20 2010 @ 03:45 PM EDT |
Best guess, MoFo noticed already, and asked Tor Braham about it, who told them
it was, really and truly a scrivener's error. In which case, they'll just let
it lie.
If not, they can elicit that the exclusion was deliberate from Braham on direct,
rest, and move for summary judgment.
If it didn't come up in his deposition, and they bring it up now, I'm not sure
if it counts as some form of inappropriate sandbagging? Of course, what's sauce
for the goose is sauce for the gander: Oh, sorry, we didn't notice this until
after we deposed Braham.
---
If the only way you can value something is with money, you have no idea what
it's worth. If you try to make money by making money, you won't. You might con
so[ Reply to This | # ]
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Authored by: sk43 on Saturday, March 20 2010 @ 04:09 PM EDT |
The lack of inclusion of SVR4.2MP on the APA was apparently no impediment when
it came time for Santa Cruz to assign all rights to Caldera in 2001. The
Intellectual Property Assignment Document for the Santa Cruz => Caldera is
attached as an exhibit to the Declaration of Troy Keller [Novell-330]. Item 4
in Section C, Copyrights, A. Source Code Products, is the errant 4.2MP.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 04:18 PM EDT |
Wikipedia on
UNIX_System_V:
"In 1992, AT&T USL engaged in a joint venture
with Novell, called Univel. That year saw
the release System V.4.2 as Univel
UnixWare, featuring the VERITAS File System. Other
vendors included UHC and
Consensys. Release 4.2MP, completed late 1993, added support
for
multiprocessing and It was released as UnixWare 2 in 1995.[12]"
Wikipedia on Univel:
"Univel
was a joint venture of Novell and AT&T's Unix System Laboratories (USL)
that
was formed in 1991 to develop and market the Destiny desktop Unix
operating system,
[1] which was released in 1992 as UnixWare 1.0. Univel
existed only briefly in the
period between AT&T initially divesting
parts of USL in 1991, and its eventual outright
purchase by Novell, which
completed in 1993. [2]"
bjd
[ Reply to This | # ]
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- Strange indeed - Authored by: Anonymous on Saturday, March 20 2010 @ 04:25 PM EDT
- Strange indeed - Authored by: Anonymous on Saturday, March 20 2010 @ 04:41 PM EDT
- Strange indeed (?) - Authored by: Anonymous on Saturday, March 20 2010 @ 04:56 PM EDT
- Carefull - Authored by: Tufty on Saturday, March 20 2010 @ 05:00 PM EDT
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Authored by: UncleJosh on Saturday, March 20 2010 @ 05:04 PM EDT |
The Wikipedia article on
UnixWare indicates that UnixWare was "based on Unix System 5 relase 4.2 MP" and
so perhaps the license for UnixWare includes SysVR4.2 as one of the "prior
products". Paragraph 1 to which A, B, C and D are sub-paragraphs says "all
versions of UNIX and UnixWare". I do not know why SysVR4.1 and SysVR4.0 would
be called out and not SysVR4.2, but none of the earlier versions such as Unix
System III are not called out and they are clearly intended to be included, so I
must assume they are in some "prior products" list in the one of the other
license agreements. I think it is hard to tell without the UnixWare license
agreements. [ Reply to This | # ]
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Authored by: Wol on Saturday, March 20 2010 @ 05:12 PM EDT |
Didn't ALL source licences include an automatic upgrade to the latest version if
they contained as much as one line of the code?
So there probably weren't that many non-4.2 licencees out there. Novell could
afford to hand over the old code, but held on to the latest version to guarantee
their rights to their licence fees.
I notice they appear to have handed over the code to the enhancements, so it
does look like hanging on to the base code must have a deliberate reason behind
it.
Cheers,
Wol[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 05:29 PM EDT |
From the direct
examination of Andrew Nagle at
the bench trial in May 2008:
A.
This depicts the relationship of the System V Release 4
operating system as it
evolved into UnixWare 2. I previously spoke about
UnixWare 1 and its relation
to System V Release 4.2. This shows that
UnixWare V Release 4 was further then
developed by the engineering staff at
USL to be capable of multiprocessing.
This became the System V Release 4.2
MP. Release MP is short, of course, for
multiprocessing. And then this 4.2 MP
Release was taken pretty much lock, stock
and barrel as the 4.2 Release was
for UnixWare 1. 4.2 became the foundation of
UnixWare 2. [ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 05:42 PM EDT |
http://www.groklaw.net/article.php?story=20031207205252984
Registration Number: TX-5-762-235
Title: UNIX System V : release
4.2.
Description: Computer program.
Note: Printout (20 p.) only
deposited.
Claimant: SCO Group, Inc.
Created: 1992
Published:
25Jun92
Registered: 3Jul03
Author on © Application: UNIX System
Laboratories, Inc. (employer for hire)
Previous Related Version: Prev.
reg. 1992, TXu 510-028 et al.
Special Codes:
1/C,
Am I stupid, or is this what we're looking for?
Or both?
[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 05:45 PM EDT |
From Schedule 1.2(b) of the APA:
"(f) SVRx Converted Units. The parties agree that SCO will have the
opportunity to convert existing SVRx-based customers to a UnixWare derived
product, thus depriving Seller of the economic benefit of the SVRx licenses. The
process for determining if a customer is validly converted is as follows:
The conversion of an SVRx customer to UnixWare will validly occur and result in
the UnixWare based revenue flowing to SCO, without giving rise to a continued
obligation to make payment to Seller of royalties due under the SVRx licenses,
only if the following are true (note: if the customer continues to sell their
SVRx based product separately, then these SVRx revenues continue to flow to
Novell):
(i) The customer ships a binary copy of a Golden Master of UnixWare, Eiger, MXU
or White Box, or
(ii) The product is derived from a source version of UnixWare, Eiger, MXU or
White Box and (i) none of the original SVRx code provided by Novell to the
customer, under the SVRx license, is included in the new product or (ii) Buyer
shall demonstrate to Seller's reasonable satisfaction that an insignificant
amount of original SVRx code is so included and the adoption of UnixWare is so
substantial as to constitute a valid conversion.
In addition, an SVRx customer can be defined as having converted to UnixWare
only if one of the above is satisfied and only if support is provided for NDS
(client/server where appropriate) in the resulting product."
The Santa Cruz Operation had the opportunity to continue in a UNIX business that
Novell was then engaged in at pennies on the dollar of the initial investment.
They not only got an instant upgrade to a modern UNIX, they could have succeeded
the original licensor of the System V code if they had executed on the operating
agreement they made with Novell.[ Reply to This | # ]
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Authored by: Anonymous on Saturday, March 20 2010 @ 05:46 PM EDT |
It crossed my mind that this is the target of Darl's ploy. Suppose he
recognized that Unixware was based on SVRX4.2 and saw that this wasn't in the
APA. We might just have been slow in catching on to his gambit.[ Reply to This | # ]
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Authored by: bugstomper on Saturday, March 20 2010 @ 08:31 PM EDT |
"UnixWare 2.0 as described in the UnixWare 2.0 Licensing Schedule and those
products listed as "prior" products on such schedule"
It seems that finding out exactly what is in the Unixware 2.0 Licensing Schedule
could be key to resolving this question if it lists SVR4.2 or SVR4.2MP as a
"prior product". But I couldn't find the schedule when I found an
article on Groklaw that had the schedules that went along with the APA, nor
through searching on Google or on Groklaw.
Does anyone have a link to the Unixware 2.0 Licensing Schedule?
[ Reply to This | # ]
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Authored by: Haitch on Saturday, March 20 2010 @ 10:32 PM EDT |
Reviewing Tor Braham's exhibits, specifically Exhibit
9 is the
following section which may explain why Novell
retained the rights to
SRV4.2
"Novell Proposal - Modified 9/10 (not reviewed with SCO):
Novell feels that it is critical to satisfy Novell's
UnixWare customer
investments and therefore the above
migration plan must be followed after the
Comprehensive
Agreement is signed. Therefore, in order to be assured that
the
plan is followed, Novell proposes that Novell have the
option to similar rights
and technology (as it existed on
the effective date of this agreement) to
additonal third
parties if the plan is not met by SCO. In addition, Novell
proposes that if the Merged Product plan is not met, Novell
will increase the
NetWare related per copy fees (TBD)."
The technology as it
exhisted on the effective date of the
agreement would be SRV4.2.
So Novell
retained it, so that if SCO failed to deliver the
"Merged Product", Novell had
the right to devlop/sell the
code as of the effective date.
H.
[ Reply to This | # ]
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Authored by: thorpie on Saturday, March 20 2010 @ 10:47 PM EDT |
from http://www.skytel.co.c
r/unix/research/1992/0616.htm
Relevant Quotes
SAN FRANCISCO,
Calif. – JUNE 16, 1992 -- UNIX System Laboratories, Inc., today announced a new
streamlined and vastly simplified version of the UNIX* operating system that
puts all the power of advanced 32-bit business and personal computing under
graphical "point and click" control.
UNIX System V Release 4.2 will be
licensed in source code form by USL to computer industry hardware and software
vendors worldwide. Those vendors will provide commercial "binary" versions for
their customers.
First implementations will be for Intel386/Intel486,
SPARC and MIPS-based platforms. Others are expected for the RS6000, DEC Alpha
and Hewlett-Packard Precision Architecture platforms in 1993.
"By using
UNIX SVR4.2 as the foundation of our UnixWare* family of products, Univel will
be bringing the most powerful UNIX operating system available today to the end
user," said Joel Appelbaum, Univel president and CEO.
"Our plan to
market UnixWare through Novell's high-volume distribution channel ensures that
our customers will benefit from the SVR4.2 technology."
SVR4.2 source
code can be licensed now by industry vendors from USL offices worldwide. Source
code for Intel386/Intel486 processors will ship in July. Source code for SPARC
and MIPS ports of UNIX SVR4.2 will be available to vendors by the end of the
year.
--- The memories of a man in his old age are the deeds of a
man in his prime - Floyd, Pink [ Reply to This | # ]
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Authored by: Ian Al on Sunday, March 21 2010 @ 06:19 AM EDT |
No, no, not the APA; the SCOSource RTU contract. I know the slide says
Provides an end-user license for SCO's UnixWare 7.1.3 product for
use in conjunction with any Linux offering - structured as a binary, run-only,
per CPU license.
What the Everyone's Internet licence said (from
Judge Kimball's bench trial findings of 16th July 2008) was The EI
SCOsource license grants, with certain limitations, the "right and license to
use . . . SCO IP." "SCO IP" is then defined as follows:
"SCO IP" means the
SCO UNIX®-based Code alleged by SCO to be included, embodied, or otherwise
utilized in the Operating System.
. . . .
"UNIX-based Code" means any Code
or Method that: (i) in its literal or non-literal expression, structure, format,
use, functionality or adaptation (ii) is based on, developed in, derived from or
is similar to (iii) any Code contained in or Method devised or developed in (iv)
UNIX System V or UnixWare®, or (v) any modification or derivative work based on
or licensed under UNIX System V or UnixWare.
SCO acknowledges that the central
feature of the other SCOsource Agreements is the covenant not to sue and the
waiver of claims by SCO for the companies' internal Linux usage. There was
testimony at trial that the SCOsource license agreements differed from
traditional licenses because they did not involve product.
As noted above,
SCO's complaint about "companies' internal Linux usage" was in fact a complaint
that those companies were using the UNIX code that SCO claims is in Linux. SCO
has not identified any unique SCO UnixWare code in Linux supposedly released or
waived by the Other SCOsource Licenses. However, there was testimony at trial
that SCO was concerned with infringement of UnixWare and
OpenServer.
It's not possible to use UnixWare in conjunction with
Linux any more than it is possible to use Linux in conjunction with Windows.
They never provided a UnixWare installation CD with the SCOSource licences so
they must only be referring to components of UnixWare or SVrX that were in
Linux. The only copyrights that SCOG have in UnixWare are the copyrights to
their additions to SVrX made after the Santa Cruz APA. All the rest is SVrX. Non
of Santa Cruz copyrighted code could have got into Linux unless they put it
there. You might note that there is third party copyright material in UNIX and
this might be construed under any circumstances as a licence to violate other
companies copyright code. You might also note that SCOG are using IP to refer to
code and not copyright. In this trial Novell established that IP could refer to
code rather than copyright.
Judge Kimball went on to say Because
the SCOsource licenses cannot be construed to include a release of SVRX
copyright infringement, the court does not find the licenses to be SVRX Licenses
that generated SVRX Royalties to Novell under the APA. SCO could not release
Novell's rights to claims based on its ownership of the SVRX copyrights. Even if
the releases contained in the SCOsource Agreements were considered SVRX
Licenses, there is no value in the agreements with respect to Novell's SVRX
interests. As such, Novell has no entitlement to monies SCO received with
respect to a release of only SCO's rights. The value of those SCOsource releases
is a matter between SCO and the parties who entered into such releases. In
addition, because the court concludes that the releases in the SCOsource
Licenses were not SVRX Licenses, SCO had authority to execute the
agreements.
So, if the copyrights belonged to Novell then the
SCOSource licence was not an indemnification against the use of Novell's
copyrights. What if the copyrights belong to SCOG? If there is not an explicit
indemnification in one case, how can there be an explicit indemnification in the
other? The licence makes no offer of indemnification against claims of copyright
violation. Thus, SCOSource licences do not depend on the ownership of
copyrights.
One last poke (if you'll permit the expression), IIRC,
Intellectual Property is not a legal term. There is no law against using another
guy's IP. So, the covenant not to sue is a covenant not to bring a frivolous law
suit against the licence holder. One might think it foolish to give a company
all your contact details for a contract promising not to bring illegal
litigation against you. --- Regards
Ian Al
I sentence you to seven years, or more with good behaviour. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, March 21 2010 @ 07:33 AM EDT |
"Update: Take a look at Exhibit 9 to Tor Braham's Declaration. The exhibit
is the term sheet, the business guy's understanding of the deal. It also does
not list SVR4.2. Here's an intriguing paragraph:
Novell Proposal - Modified 9/10 (not reviewed with SCO): Novell feels that
it is critical to satisfy Novell's UnixWare customer investments and therefore
the above migration plan must be followed after the Comprehensive Agreement is
signed. Therefore, in order to be assured that the plan is followed, Novell
proposes that Novell have the option to similar rights and technology (as it
existed on the effective date of this agreement) to additional third parties if
the plan is not met by SCO. In addition, Novell proposes that if the Merged
Product plan is not met, Novell will increase the NetWare related per copy fees
(TBD).
Might it be that Novell retained whatever it thought it would need if SCO fell
down on the job, particularly in light of Novell's fears for SCO's survival as a
company? The "technology as it existed" would be SVR4.2. Might that be
the explanation for retaining it? Plus, SCO was to merge UnixWare and
OpenServer, so would it have needed SVR4.2? Might that explain the odd language
of Amendment 2?"
Oh my goodness. I think PJ just fell down the rabbit hole. This is a whole new
world. The implications are intriguing.
Did Santa Cruz Operation in fact complete the "Merged Product plan"?
Where exactly does Netware fit into all this? Is there any Unix code in
Netware? I've been aware of Netware, but really know very little about it.
Novell as the owner of Unix would have been free to incorporate as much of Unix
as they wanted into Netware.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, March 21 2010 @ 09:59 AM EDT |
The reason that 4.2MP is not listed lies in Schedule 1.1(a) in this:
"UnixWare 2.0 Licensing Schedule and those products listed as
"prior" products on such schedule".
At the point of sale to SCO companies wanting a Unix source license were sold a
Unixware source license by Novell since it was the latest incarnation of Unix.
As Unixware was built on top of SVR4.2MP it had that as a "prior"
product so there was no point in buying a 4.2MP license specifically. Even if
you actually wanted 4.2MP and not Unixware you bought Unixware because it
contained bug fixes for 4.2MP which would would want in your product.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, March 21 2010 @ 04:29 PM EDT |
Unix System V Revision 4.2 was a cooperative project with AT&T and Novell
(and others) working together to create a product that Novell called
"UnixWare". AT&T and Novell named the project Univel.[ Reply to This | # ]
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Authored by: The Mad Hatter r on Sunday, March 21 2010 @ 08:49 PM EDT |
I seem to remember an article several years ago where PJ reported that Novell
had been working with the Santa Cruz Organization on an update to Unix or
Unixware post APA. In other words, Novell software engineers did part or all of
the programming, and if my memory is right they did most of the programming.
I looked for it, and couldn't find it. I'm hoping someone else might have some
success - I've been in a lot of pain this weekend, and the pain killers tend to
mess up my thinking.
---
Wayne
http://madhatter.ca/[ Reply to This | # ]
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Authored by: Anonymous on Sunday, March 21 2010 @ 10:44 PM EDT |
I found the following information from 1993 that explains why SVR4.2 was not
called out separately as a transferred asset.
Novell Moves to Mainstream Unified UNIX Operating System Standardizing Source
Code on UnixWare
"In a significant change from past UNIX
system source code licensing
practices, beginning in the fourth quarter of
1993, UNIX source code from
Novell will be provided as a complete ready-to-ship
product identical to
Novell's UnixWare. Original equipment manufacturer
partners will not be
required, as they were before, to make redundant R&D
investments and
spend valuable engineering resources to create finished UNIX
system
products."
Novell decided to change their previous
licensing policy, where they sold licenses to generic Unix source code for use
by OEM vendors and different licenses for UnixWare source code for vendors that
wanted that option. Instead, they started licensing the same source code under
just the UnixWare license product.
--bystander1313 [ Reply to This | # ]
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Authored by: Gringo on Monday, March 22 2010 @ 11:30 AM EDT |
Wow! Nice work. [ Reply to This | # ]
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Authored by: Anonymous on Monday, March 22 2010 @ 04:50 PM EDT |
The APA refers to the various “Licensing Schedules” to define
“prior“ products.
A. UnixWare 2.0 as described in
the UnixWare 2.0 Licensing Schedule and those products listed as "prior"
products on such schedule (includes source code updates where appropriate - i.e.
UnixWare product family).
While no one has yet provided a
publicly-available reference for the “Licensing Schedules”, the
“prior” products are listed on some of the licensing agreement
“supplements”. In the first SCO v Novell trial, a few of
those product supplements where entered into evidence and
discussed.
From the first SCO v Novell bench trial day 1
transcript (29 Apr 2008), in Novell's opening
statement:
MR. JACOBS [FOR NOVELL]: [...]
10 So
this is a supplement. It's a supplement to
11 NCR. It's from Santa Cruz. You
can see that it was
12 executed by the Santa Cruz operation in 1997. And
it
13 includes a license to UnixWare 2.1 Source at an extended
14 price
of $250,000. And then, if you go to the next
15 slide, you'll see all
the prior products are licensed.
16 So, here are all the SVRX releases, for
example, that
[p.25]
From this, we may infer that
the UnixWare 2.1 Licensing Schedule included SVR4.2 MP as a “prior”
product.
An inference about the 2.1 “Licensing Schedule” in
1997, though, doesn't necessarily tell us what the UnixWare 2.0 “Licensing
Schedule” included at the time of the APA. [ Reply to This | # ]
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Authored by: Anonymous on Monday, March 22 2010 @ 07:04 PM EDT |
(Sorry so late)
Is there something already introduced (or will be introduced) as evidence which
could be used to prove when 4.2 was produced/sold compared to when the APA was
signed?
If not - how do you introduce this without getting SCO to object?
[ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 23 2010 @ 01:27 AM EDT |
It has been a while, but in answer to why it was intentional not included,
what it wasn't needed by Santa Cruz, but Novell had several System V
licensees who had there version of the Unix operating system based upon the
SV 4.2 OEM release.
I suspect that because of this existing 4.2 OEM licensees, that the plan going
forward, what to convert them to Unixware 2.0_ licensees. Thus Santa Cruz
didn't need this release.
Especially, if Novell was concerned with protecting it's revenue stream.
Just my $.02 opinion.[ Reply to This | # ]
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Authored by: thorpie on Tuesday, March 23 2010 @ 04:48 AM EDT |
the copyrights and trademarks owned by Novell as of the date of
the Agreement required for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies
So SCO only
got Unixware, and Unix up to 4.1. The reasons Novell retained 4.2 are :
because 4.2 was supposed to be obsoleted when Unixware was fully
rewritten;
because the cash for the sale was not available from SCO,
so they retained the cashflow from their existing customer base for a couple of
years until these customers migrated to the to be rewritten Unixware;
because it allowed Novell to provide security for their existing
customers; and
because they wanted a fallback in case SCO and Unixware
fell over.
SCO and Unixware have fallen over - Unixware has not
been developed in the past 15 years and no-one has bought any Unixware source
licenses. Novell retains the codebase for 4.2 to develop it further if they
desire, but I'd suggest it is now fully obsolete with no replacement
product. --- The memories of a man in his old age are the deeds of a
man in his prime - Floyd, Pink [ Reply to This | # ]
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Authored by: Anonymous on Tuesday, March 23 2010 @ 05:43 PM EDT |
Which version of AT&Ts Unix did they take code from BSD? Shouldn't there be
a line from BSD back into the main Unix code path? I'm not seeing that one in
HPs diagram. That diagram doesn't look correct to me.
--Celtic_hackr[ Reply to This | # ]
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Authored by: Anonymous on Wednesday, March 24 2010 @ 01:39 PM EDT |
wiki link below
http://en.wikipedia.org/wiki/UNIX_System_V
"In 1992, AT&T USL engaged in a joint venture with Novell, called
Univel. That year saw the release System V.4.2 as Univel UnixWare, featuring the
VERITAS File System. Other vendors included UHC and Consensys. Release 4.2MP,
completed late 1993, added support for multiprocessing and It was released as
UnixWare 2 in 1995.[12]"[ Reply to This | # ]
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