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SCO's Exhibit C - The AT&T/IBM Side Letter
Sunday, November 16 2003 @ 01:01 AM EST

Here is the "what's mine is mine and what's yours is yours" AT&T/IBM Side Letter, attached to SCO's Amended Complaint as Exhibit C. Thanks, once again, to the loyal and hard-working Scott McKellar for providing it to Groklaw.



*************************************

[AT&T Technology Systems Letterhead]

O.L. Wilson
Manager, Software
Sales and Marketing
[address, phone]

February 1, 1985

Old Orchard Road
Armonk, New York 10504

Gentlemen:

Re:    Software Agreement Number SOFT-00015, Sublicensing Agreement Number SUB-00015A and Substitution Agreement Number XFER-00015B

This letter states understandings between our companies relating to the referenced agreements and amends certain sections in such agreements concerning SOFTWARE PRODUCTS subject to the referenced Software Agreement.

A. Software Agreement

1.   Regarding Sections 2.01 and 4.01, we will consider extending rights granted under Section 2.01 to include use of SOFTWARE PRODUCTS in countries other than the United States and giving written consent under Section 4.01 to export SOFTWARE PRODUCTS to such countries when specific needs arise.  In the case of additional DESIGNATED CPUs in such countries such extension and consents will be given by the Supplements for such CPUs prepared in accordance with Section 2.03.  In the case of your export of modified SOFTWARE PRODUCTS to our source licensees in such countries such consents will be given by an appropriate writing consistent with Section 7.06(b).  We are presently willing to grant such rights for the countries you have requested, namely, Australia, Austria, Belgium, Canada, Republic of China (Taiwan), Denmark, Finland, France, Federal Republic of Germany (West Germany), Greece, Hong Kong, Ireland, Israel, Italy, Japan, Republic of Korea (South Korea), Luxembourg, The Netherlands, New Zealand, Norway, Sweden, Switzerland, United Kingdom (England, Wales, Scotland, Northern Ireland), and Singapore.  We will not unreasonably withhold such permission for such listed countries or for other countries that you may identify.  Our concerns in this regard are the laws of the recipient country relating to protection of software and U. S. export control laws.

2.   Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you.  However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us.

3.   You have requested that your contractors be permitted to use SOFTWARE PRODUCTS pursuant to the referenced Software Agreement.

Accordingly, notwithstanding any provision to the contrary in the Software Agreement, including Section 7.06(a) as amended hereby, it is agreed that, subject to the conditions set forth herein, the rights granted in Section 2.01 of the Software Agreement be extended to permit you to provide access to and allow use of SOFTWARE PRODUCTS by your contractors.

Such use may be on your DESIGNATED CPUs or on such contractors' CPUs that you designate as additional DESIGNATED CPUs pursuant to Section 2.03 of the Software Agreement.  Such use by contractors will be deemed to be for your own internal business purposes.  If such use is on a contractor's CPU, you may furnish a copy of a SOFTWARE PRODUCT to such contractor.  You shall secure from each such contractor, at the time of or before providing access to or furnishing any copy of a SOFTWARE PRODUCT, the agreement of such contractor in writing that any claim, demand or right of action arising on behalf of such contractor from access to or use of the SOFTWARE PRODUCT shall be solely against you and that such contractor agrees to the same obligations and responsibilities as to confidentiality and other restrictions pertaining to the use of the SOFTWARE PRODUCT as those undertaken by you under the Software Agreement.  Each such agreement shall also provide that, when a contractor's work for you is completed, all copies of the SOFTWARE PRODUCT and any software derived from or developed with the use of a SOFTWARE PRODUCT shall be returned to you by such contractor and such contractor shall erase any such software from any storage element of apparatus.  Copies of such agreements with contractors shall be provided to us at our request.  However, portions of such agreements not specifically required by this paragraph may be deleted.  Information furnished by LICENSEE relating to contractors shall be subject to Paragraph A15 in this Letter Agreement.

4.   Regarding Section 5.04, we agree that you shall not be obligated to pay any tax based on our net income in the United States or elsewhere.

5.    Regarding Section 6.03 of the Software Agreement and Sections 2.07 and 3.03 of the Sublicensing Agreement, we will not terminate your rights for breach, nor will we give notice of termination under such Sections, for breaches we consider to be immaterial.  We agree to lengthen the notice period referenced in such Sections from two (2) months to one hundred (100) days.  If a breach occurs that causes us to give notice of termination, you may remedy the breach to avoid termination if you are willing and able to do so.  In the event that a notice of termination is given to you under either of such Sections and you are making reasonable efforts to remedy the breach but you are unable to complete the remedy in the specified notice period, we will not unreasonably withhold our approval of a request by you for reasonable extension of such period.  We will also consider a reasonable extension under Section 2.07 of the Sublicensing Agreement in the case of a DISTRIBUTOR who is making reasonable efforts to remedy a breach.

We will consider arbitration if a dispute arises on payments.

In any event our respective representatives will exert their mutual good faith best efforts to resolve any alleged breach short of termination.

6.   Regarding Section 6.05 of the Software Agreement and Section 3.05 of the Sublicensing Agreement, we will offer new software and sublicensing agreements to your former SUBSIDIARIES on the same basis as to any other prospective licensee.  A former SUBSIDIARY would be unlicensed during the period between its ceasing to be your SUBSIDIARY and the effective date of such new agreements.  Therefore, new agreements should be in effect before a SUBSIDIARY is divested.

7.   Regarding Section 7.03, we are not aware of any patent or copyright infringement claim or action against us relating to SOFTWARE PRODUCTS.

8.   Regarding Section 7.05, we will cooperate with you in defending litigation arising from your use of SOFTWARE PRODUCTS (or sublicensing of SUBLICENSED PRODUCTS under the Sublicensing Agreement), but the extent of such cooperation cannot be determined until such litigation arises.

9.   Amend Section 7.06(a) by replacing such section with the following:

--7.06(a)  LICENSEE agrees that it shall hold SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T.  LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder.  LICENSEE shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.  Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are developing any such products or service or providing any such service.  If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE's obligations under this section shall not apply to such information after such time.--

10.   Regarding Section 7.06(b), this section covers the situation where one of our licensees wishes to furnish its modified version of our source code for a SOFTWARE PRODUCT to another of our licensees for the same product.  The last sentence of this section makes clear that you may receive source code from another such licensee, provided you treat such source code as if it were the source code we furnished to you.  This language is not intended to refer to an object-code product that you obtain from another of our licensees pursuant to that licensee's sublicensing rights.

11.   Regarding Section 7.06, we recognize that you may at some time be required to disclose a SOFTWARE PRODUCT to others (i) by law, (ii) by a valid order of a court or other governmental body, (iii) by your existing undertaking with the European Economic Community or (iv) in order to establish your rights under the Software Agreement.  You recognize the proprietary nature of SOFTWARE PRODUCTS and the need to protect SOFTWARE PRODUCTS from unrestricted disclosure.  Accordingly, you agree not to make any such disclosure without giving notice to us so that we have an opportunity to intervene.  We agree to respond to any such notice within a reasonable time, consistent with the requirement that you disclose.  You agree to obtain, or assist us in obtaining, a protective order appropriately limiting the extent of any such disclosure that may eventually be made.

12.   We agree that all SOFTWARE PRODUCTS, including enhancements to or new versions of existing SOFTWARE PRODUCTS, generally available under the Software Agreement will be made available to you at the fees and under terms, warranties and benefits equivalent to those offered to other licensees.

13.   Regarding Section 1(e) of the "Schedule for UNIX* System V, Release 2.0, Version 1.0" attached to Supplement 1 of the Software Agreement, Section 1(c) of the "Schedule for UNIX Documenter's Workbench** Software" attached to Supplement 2 of the Software Agreement, and the "Schedule for 370 DEVELOPMENT SYSTEM V" attached to Supplement 3 of the Software Agreement, we agree that the fees in such schedules are not subject to increase.

14.   Regarding the documentation listed in Section 2 of the Schedule for UNIX System V, Release 2.0, Version 1.0, the documents entitled "UNIX System V System Release Description" and "UNIX System V-International Release Description" are not presently available without restriction to the general public.  All other listed documents are available without restriction.

15.   We agree that the identities of your contractors, DISTRIBUTORS and AUTHORIZED COPIERS, as well as the types and serial numbers of DESIGNATED CPUs of such parties, are confidential and need only be disclosed to us as specified under the referenced agreements, as modified hereby, and that such information will be used by us only for the purposes of administering and enforcing such agreements and will not be disclosed to anyone except those having a need to know for the purpose of administering the referenced agreements.

B. Sublicensing Agreement
1.   A DISTRIBUTOR may also be your contractor pursuant to the terms set forth in item A3 above.

2.   We agree that "internal business purposes" in Sections 2.01(a) and 2.01(b) includes the right to offer data processing services to others.

3.   Regarding the following IBM form agreements:

Our
Reference      
Form No.     Title
     
1. S125-3358-0       Agreement for IBM Licensed Programs
2. S125-3419-0 IBM Usage License Amendment to Agreement for IBM Licensed Programs
3. S125-3301-0 IBM Program License Agreement
4. S137-0075-0 IBM Instruments, Inc. Program License Agreement
5. 04-83 Amendment to Agreement for IBM Licensed Programs (Value Added Remarketer)
6. 04-83 Agreement for IBM Licensed Programs (Value Added Remarketer's Licensed End User)
7. 6172208 IBM Program License Agreement
8. Unnumbered IBM Personal Computer Retail Dealer Agreement, Software
9. 926-2661-0D IBM Personal Computer Retail Dealer Agreement

We have reviewed such form agreements for use under the provisions of the Sublicensing Agreement and have no objections to such use, or the use of substantially similar forms, in the United States and Puerto Rico provided that:

(a)  In using forms such as 1 and 6 (our references), you will not specify "Installation License Applies" or "Location License Applies";

(b)  If your customer is permitted to make its own additional copies of "licensed program materials" for use on additional machines, as permitted under form 1, you treat such additional copies under the Sublicensing Agreement as if you had furnished such copies;

(c)  In the next revision of form 3 you correct the language in the second paragraph relating to title to indicate that title may be retained by a third party (or by your licensor);

(d)  In the next revision of forms 4 and 7 you include a provision prohibiting reverse assembly or reverse compilation, as appears in forms 1, 3 and 6; and

(e)  In dealing with AUTHORIZED COPIERS you obligate such parties to include in copies they make of SUBLICENSED PRODUCTS the notices required by Section 2.08(a) of the Sublicensing Agreement.

4.   Amend Section 2.02 by changing "written agreement on the package" to --written agreement on or accompanying the package--.

5.   Amend Section 2.05(b) by replacing such Section with the following:

--(b)  If an AUTHORIZED COPIER also has been granted a right to use a SOFTWARE PRODUCT, either as a licensee of AT&T (or of a corporate affiliate thereof) or as a contractor of LICENSEE (in accordance with requirements of AT&T), such AUTHORIZED COPIER may use such SOFTWARE PRODUCT to modify a SUBLICENSED PRODUCT derived from such SOFTWARE PRODUCT.  If the resulting modifications are owned solely by LICENSEE, then fees for copies of such modified SUBLICENSED PRODUCT distributed to customers by such AUTHORIZED COPIER may be paid to AT&T pursuant to this Sublicensing Agreement or pursuant to a Sublicensing Agreement between AT&T and such AUTHORIZED COPIER, as LICENSEE shall elect.  However, if such AUTHORIZED COPIER retains any ownership interest in such modifications, then fees for copies of such modified SUBLICENSED PRODUCT distributed to customers by such AUTHORIZED COPIER must be paid to AT&T only pursuant to a Sublicensing Agreement between AT&T and such AUTHORIZED COPIER.  Regardless of which Sublicensing Agreement is involved, only one fee shall be collected by AT&T for such copy.

6.   Regarding Section 2.06, "best efforts" need be no more than the efforts you would customarily use to enforce equivalent agreements (such as those listed in B3 above) with your customers, value added resellers, end users, and dealers.

7.   Regarding Section 2.08(a), only bona fide notices need be included, not irrelevant comments that may appear in a SOFTWARE PRODUCT.

8.   Regarding Section 2.09, we have not yet made any copies of software materials available under this Section.  If we do so, you may elect whether to make your own copies or purchase such copies from us.

9.   Regarding the references you are permitted to make to our trademark under Section 2.10, you are under no obligation to make such references.

10.   Amend Section 3.02, first and second lines, by deleting "or AT&T notifies LICENSEE in writing", and, third line, by changing "such party" to --LICENSEE--.

11.   The discount provisions in the Sublicensing Agreement are deleted.  We will exert our good faith best efforts to propose a new discount provision by April 1, 1985.  Such new discount provisions will be retroactive to the effective date of the Sublicensing Agreement and, at a minimum will:

(i)   provide a discount percentage, applicable to essentially yearly discount periods, of at least two percent (2%) for each whole one hundred thousand dollars ($100,000.00) of discounted per-copy fees up to a maximum of sixty percent (60%), or equivalent;

(ii)  require advance payment of per-copy fees by you no more frequently than quarterly;

(iii) require no advance commitment by you regarding volume of SUBLICENSED PRODUCTS furnished to customers or put into use; and

(iv)  provide for no retention by us of advance payments made by you unless mutually agreed.

12.   Regarding Section 5.01, we agree that neither you nor your AUTHORIZED COPIERS or DISTRIBUTORS will be required to provide or disclose the identity of customers to us or our accredited auditing representatives.

13.   Regarding Section 5.02(a), we agree that the notification in writing required by such Section may be within thirty (30) days after the date you begin furnishing copies of a SUBLICENSED PRODUCT to customers or DISTRIBUTORS or putting such copies into use on your CPUs, and that you may pay any sublicensing fee for the SOFTWARE PRODUCT on which such SUBLICENSED PRODUCT is based at the time of such notification.

14.   Regarding Section 5.02(c), you need not pay a per-copy fee for copies of SUBLICENSED PRODUCTS that are returned without having been used or are furnished in place of a defective copy.  You are not required to pay an additional per-copy fee for an enhancement if the enhancement does not increase the number of users supported by a product into the next higher category.  However, when we furnish later versions of a SOFTWARE PRODUCT with new features, we may require payment of additional sublicensing fees to upgrade your earlier SUBLICENSED PRODUCTS to include the new features.

15.   Regarding the documentation you may furnish to a customer or end user, which documentation is defined as part of a SUBLICENSED PRODUCT, you may furnish the number of copies necessary to reasonably support the product without paying an additional sublicensing fee.  You may also furnish to prospective customers the number of copies of such documentation necessary to reasonably support the marketing of the SUBLICENSED PRODUCT without paying a sublicensing fee for such copies.

16.   Regarding your obligation under the Sublicensing Agreement to pay per-copy sublicensing fees for SUBLICENSED PRODUCTS furnished to customers (or put into use on your internal CPUs), we recognize that certain of your SUBLICENSED PRODUCTS may comprise a set of parts, with one major part being a prerequisite for the other, minor part(s), such that if you furnished (or put into use) all the parts together you would be obligated to pay only one per-copy fee.  However, we understand that you wish to furnish (or put into use) the parts separately, paying the full per-copy fee when you furnish (or put into use) the major part and no fee at all when you furnish (or put into use) the minor part(s).  We agree that you may do this, provided that you report, pursuant to Section 5.02 of the Sublicensing Agreement, the quantities of each major and minor part furnished (or put into use) and that such quantities be reconciled periodically to determine whether the quantity of any minor part ever exceeds the quantity of major parts, and that if there is such an excess, you pay an additional per-copy fee for each excess minor part.  We will exert our good faith best efforts to propose by April 1, 1985 methods for such reconciliation and for determining such additional per-copy fees.  We would expect such fees to be based on a proportional reduction of the full per-copy fee with the objective of achieving an equitable fee arrangement, taking into account the excess quantities of minor parts over major parts.  The discount arrangement applicable to the full per-copy fees will also apply to the additional per-copy fees.

C. Substitution Agreement
Regarding SUBLICENSED PRODUCTS based on LICENSED SOFTWARE under the prior Software Agreement listed in the Substitution Agreement, we agree that you may elect to pay per-copy sublicensing fees for some such SUBLICENSED PRODUCTS at the rates set forth in Sections 4.01(a) and (b) of the prior Supplemental Agreement (Customer Provisions) ("the old rates") and other such SUBLICENSED PRODUCTS at the rates set forth in Section 1(c) of the Schedule for UNIX System V, Release 2.0 ("the new rates"), provided:

(a)  You pay the Initial Sublicensing Fee specified in Section 2(c)(i) of such Schedule when you begin paying some per-copy fees at the new rates while continuing to pay other per-copy fees at the old rates.  (Such Initial Sublicensing Fee will be waived if you elect to pay all per-copy fees at the new rates.)

(b)  Per-copy fees you pay under the old rates do not apply to the determination of any discount percentage under the new Sublicensing Agreement and per-copy fees you pay under the new rates do not apply to the "Cumulative Total of Fees Paid" under the prior Supplemental Agreement (Customer Provisions).

(c)  In the statements furnished pursuant to Section 5.02(b) of the new Sublicensing Agreement you clearly distinguish whether you are applying the old rates or the new rates for relevant SUBLICENSED PRODUCTS.

Capitalized terms in this letter agreement are defined in the referenced agreements.

If you agree with the above understandings and amendments, please so indicate by signing and dating the attached copy of this letter agreement in the spaces provided therefor and returning such copy to us.

  Very truly yours,

AT&T TECHNOLOGIES, INC.

By {signature: illegible}
for O. L. Wilson

ACCEPTED AND AGREED TO:

INTERNATIONAL BUSINESS MACHINES CORPORATION

By {signature: illegible}

Title {illegible}            

Date {illegible}            


*UNIX is a trademark of AT&T Bell Laboratories.
**Documenter's Workbench is a trademark of AT&T Technologies.

  


SCO's Exhibit C - The AT&T/IBM Side Letter | 85 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
SCO's Exhibit C - The Side Letter -- Needs to be Edited
Authored by: Mark Grosskopf on Saturday, November 15 2003 @ 08:04 PM EST
I think Paragraph 10 would cover any source code conveyed to IBM when IBM bought
out Sequent, even if Sequent didn't have this amendment to their license from
AT&T...

Mark

[ Reply to This | # ]

SCO's Exhibit C - The Side Letter -- Needs to be Edited
Authored by: fjaffe on Saturday, November 15 2003 @ 08:07 PM EST
Paragraph A.3 "from any storage element of apparatus." should be
"...or aparatus."

Paragraph A.5 "notice of termination is given to your..." should be
"you"

Sorry, that is all I could find. Excellent job!!!

[ Reply to This | # ]

PJ - Thoguht for the day, from Fortune Magazine
Authored by: freeio on Saturday, November 15 2003 @ 08:54 PM EST
PJ

The following article by Geoffrey Colvin (page 55 in the November 24 issue of Fortune Magazine) does not mention TSG by name, but his take is that the "family" nature of the current crop of corporate crimes has attricted the AGs' notice.

"Value Driven Column"

My take on this is that the TSG actions appear to fit the "enterprise corruption" standard under which the Mafia has been prosecuted. His example of this is HealthSouth, but the parallels are striking. As such, it opens up the possibility of goading the proper AG or AGs into noting this case, and following up. Note that this has the peculiar behavior of putting the cost of prosecution on the state government unlike the lawsuit route. Furthermore, it can and is being used against both corporations and their principals.

It is worth the time to read.

---
73 de w4ti

[ Reply to This | # ]

The "what's mine is mine and what's yours is yours" side letter
Authored by: Anonymous on Saturday, November 15 2003 @ 09:28 PM EST
This actually isn't the letter described in the BSDi depositions. It lacks any
added clause at the end of section 2.01, and fails to mention that derivatives
and modifications are only subject to the same confidentiality obligations as
SOFTWARE PRODUCT in the event that they actually contain some SOFTWARE PRODUCT.

Here is an example of section 2.01 from the August 1985 side letter in BSDi:

"Para. 2.01 (a) ...[the] right to use includes the right to modify such
SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT,
provided that any such modification or derivative work that contains any part of
a [AT&T] SOFTWARE PRODUCT subject to this Agreement is treated hereunder the
same as such [AT&T] SOFTWARE PRODUCT. *AT&T-IS claims no ownership
interest in any portion of such a modification or derivative work that is not
part of a [AT&T] SOFTWARE PRODUCT.*"

Notice the wording of that differs from the section 2.01 in the side letter
above in several key respects. First there is an extra sentence added where
AT&T disclaims any ownership in any code they didn't develop, but also that
ONLY derivatives and modifications that ACTUALLY CONTAIN some AT&T code are
to be treated as SOFTWARE PRODUCT.

"[fn13] It appears that AT&T similarly tried to restrict other
licensees' rights with respect to code they derived from AT&T's UNIX,
because AT&T sent out a clarification to all its licensees in August, 1985
which stated: "Section 2.01. The last sentence was added to assure
licensees that AT&T will claim ownership in the software that they developed
-- only the portion of the software developed by AT&T."

Here you can see the last sentence was added to the portion of a post August
1985 license shown in the UC Regents amicus brief, but it doesn't yet appear in
section 2.01 of IBM's February 1985 side letter.

This supplements the Software Agreement. It's not merely a clarification it's
an amendment too. Some have suggested that the sublicense (for example
Sequent's) cancels any previous amendments to the Software agreement. Section 3
of the sublicense actually serves to keep this side letter in effect. Section 4
of the sublicense specifically allows for supplements to the main license
agreement. I see nothing in the either IBM sublicense agreement that
specifically voids any supplements or amendments to the main Software Agreement.

[ Reply to This | # ]

Cognitive Dissonance
Authored by: sela on Sunday, November 16 2003 @ 02:58 AM EST

In psychology, cognitive dissonance is a term describing a situation where there
is a contradition or a gap between your beliefs and your actual actions.
An unresolved cognitive dissonance is a very uncomfortable situation, and
therefore people try to "resolve" it in different ways. The two
easiest ways to resolve a cognitive dissonance is either adjusting your beliefs
to meet reality, or - an even easier way, adjusting your perception of reality
so that it would seem to you as if there is contradition.

One particular type of mechanism related to cognitive dissonance is known as the
"Justification of effort" principle. The idea is that once you made
great effort to achieve something, it would look like a great idea to you, even
when facts should convince you this is a very bad idea, because changing the
path you took means all your efforts where for nothig, which would result in a
cognitive dissonance.

I do tend to believe this cognitive mechanism may very well explain the actions
of Darl and friends at SCO. For me, the picture of a bunch of stuborn men
insisting on sticking to a futile and destuctive way because they feel commited
to it due to past actions seem more probable than all the conspiration
theories.

After all, exactly the same thing happens during war.

[ Reply to This | # ]

SCO's Exhibit C - The AT&T/IBM Side Letter
Authored by: Anonymous on Sunday, November 16 2003 @ 05:53 AM EST
Looks like section 7.06(a)is the basis for SCO's suit.

LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder

but it looks like they have shot their Trade Secret in the foot

Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS

Does this mean that IBM can develope software, using any methods from unix as long as it doesnt do a copy or refer to the manuals? If they learn all of the methods and then walk into a clean room and write linux software, they should be good.

Looks like #11 is also where SCO is trying to draw it's case.

You recognize the proprietary nature of SOFTWARE PRODUCTS and the need to protect SOFTWARE PRODUCTS from unrestricted disclosure. Accordingly, you agree not to make any such disclosure without giving notice to us so that we have an opportunity to intervene.

I gues that only applies to source code that has some of the original source code in it. Other wise the contract wouldn't have said that they can develop and market software based on methods as long as the manuals weren't referenced or source code copied. Guess that also explains their complaint about IBM not telling them about working on Linux at the same time as Montery.

[ Reply to This | # ]

Future news prediction 3?
Authored by: Anonymous on Sunday, November 16 2003 @ 07:46 AM EST
Future news prediction?

You need to read the right parts :-) :-) :-)

2. Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us.

On in short:

"2." ... "we agree that" ... "works prepared by or for you are owned by" ... "us."


And gee, you were wondering about SCO's 16th and 25th affirmative defenses:

16th: "IBM is not, or may not be, the owner of the '746, '211, '209, or '785 Patents at issue"

25th: "Upon information and belief, IBM lacks standing to assert that SCO infringed some or all of the patents at issue"

[ Reply to This | # ]

SCO's Exhibit C - The AT&T/IBM Side Letter
Authored by: Anonymous on Sunday, November 16 2003 @ 02:36 PM EST
Well, this sure blows a big hole in SCO's case. All that might be left is
original SVR4 code that SCO might claim IBM gave to Linux, and ditto Unixware
IBM learned about in the Monterey project.

Regarding SVR4 code, who would want it? it is old and obsolete, and it would
have to be very extensively re-written to work in Linux.

And here is something else. There are thousands of organizations out there that
are licenced for the SVR4 code, and I am sure that a great many of them also use
Linux. You can be sure that when SCO started making claims about code in Linux,
most if not all of these organizations took their SVR4 source code and compared
it with Linux.

If they had come up with any significant amount of SVR4 code in Linux, their
lawyers would have warned them they were in danger of a lawsuit, and they would
have run to SCO to get a licence. The fact that SCO is failing to claim that
they have sold thousands of licences indicates that no one found any infringing
code.

As far as Unixware code goes, why would Linux even want it? So it seems to me
that SCO has no case left at all.

[ Reply to This | # ]

SCO's Exhibit C - The AT&T/IBM Side Letter
Authored by: Anonymous on Sunday, November 16 2003 @ 02:54 PM EST
We should show this letter to the various analysts who are writing about the SCO
case. It pretty well blows SCO's case out of the water.

[ Reply to This | # ]

You forgot the Date: Feb 1, 1985
Authored by: Anonymous on Sunday, November 16 2003 @ 04:09 PM EST
I was baffled trying to read this document without first knowing in which decade
it was written! I had to pull up the pdf scan to learn that it is clearly dated
"FEB 1 1985" on page one. Please add that to the text version.
Thanks for all your work on this.

[ Reply to This | # ]

Isn't this the smoking gun???
Authored by: Anonymous on Sunday, November 16 2003 @ 05:22 PM EST
---------------------

2. Regarding Section 2.01, we agree that modifications
and derivative works prepared by or for you are owned by you. However,
ownership of any portion or portions of SOFTWARE PRODUCTS included in any such
modification or derivative work remains with us.

--------------------



I'm
not a lawywer, so can somebody explain to me why this line doesn't nuke 90% of
SCO's claims???


As I read this:

If IBM released code with SYSV code in it,
then the SYSV code is owned by SCO.

If IBM released code that that was
originally written for AIX or Dynix, but doesn't contain SYSV code, then IBM
owns it and can do what they want.

Seems simple enough... so why in the world
did SCO submit this as part of their claim?



[ Reply to This | # ]

SCO's Exhibit C - The AT&T/IBM Side Letter
Authored by: Wesley_Parish on Monday, November 17 2003 @ 07:39 AM EST
9. Amend Section 7.06(a) by replacing such section with the following:

--7.06(a) LICENSEE agrees that it shall hold SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. LICENSEE further agrees that it shall not make any disclosure of such SOFTWARE PRODUCTS to anyone, except to employees of LICENSEE to whom such disclosure is necessary to the use for which rights are granted hereunder. LICENSEE shall appropriately notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. Nothing in this agreement shall prevent LICENSEE from developing or marketing products or services employing ideas, concepts, know-how or techniques relating to data processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into any such product or in connection with any such service and employees of LICENSEE shall not refer to the physical documents and materials comprising SOFTWARE PRODUCTS subject to this Agreement when they are developing any such products or service or providing any such service. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE's obligations under this section shall not apply to such information after such time.--

As I see it, AT&T was doing such a good job distributing its "IP around, that this clause

If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE's obligations under this section shall not apply to such information after such time.
pretty much renders SCO's case something between barratry and contempt of court.

SCO has not taken on SUN's source code licensing; I wonder why. And that situation, of Sun releasing source code, has fulfilled the conditions above.

So why SCO should be allowed to get away with its wild claims, is beyond me. IBM should demand an Open Book style trial, because, as proved above, SCO has NO secrets anymore.

---
finagement: The Vampire's veins and Pacific torturers stretching back through his own season. Well, cutting like a child on one of these states of view, I duck

[ Reply to This | # ]

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