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The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Thursday, March 18 2004 @ 01:21 AM EST

There has been some debate about whether or not the two $ echo AT&T newsletters Novell put up on its website (attached to its February 6, 2004 letter) really meant to clarify the terms of the AT&T contracts so as to say that AT&T made no claim to derivative works if they contained none of their original code. That question appears to be resolved in Novell's (and IBM's) favor.

If you look at Exhibit A, attached to SCO's own complaint in the Daimler Chrysler case, the 1988 software agreement between AT&T and Chrysler, you find that the 1985 $ echo terms are incorporated into the later contract. Credit for first noticing this goes to Groklaw's dmscvc123.

The exact terms found in Clause 2.01 of the Chrysler agreement are these:

"AT&T-IS grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE'S own internal business purposes and solely on or in conjuntion with DESIGNATED CPUs for such SOFTWARE PRODUCT. Such 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 SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such 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 SOFTWARE PRODUCT.""

The Chrysler contract defines SOFTWARE PRODUCT like this:

"SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS, information used or interpreted by COMPUTER PROGRAMS and documentation relating to the use of COMPUTER PROGRAMS. Materials available from AT&T-IS for a specific SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE PRODUCT. Certain SOFTWARE PRODUCTS available under this Agreement may contain materials prepared by other developers."

Darl, in his interview with Dan Farber was asked about the echo newsletter, and his response was:

"We'll be glad to take our contracts against the newsletter. OK? If you look at what the newsletter is claiming, it's claiming that you, in fact, own the derivative work. We've said that from the very first filing in the IBM case. IBM owns their derivative works. That's what the newsletter says. We're saying we have an easement through the back of the property."

The Chrysler contract shows that it's not a question of contract versus newsletter. It's contract as explained by newsletter and the clarification has just shown up incorporated into Chrysler's 1988 contract in the exact place indicated in the August 1985 newsletter. The newsletters and now the contract spelled out who owned modifications and derivative works, the very issues involved in the IBM case, and AT&T said they didn't own them. So where in the above paragraph or in the contract as clarified by the newsletters do you see an easement?

Me neither.

Just for review, here is what the April 1985 echo newsletter said:

"AT&T ANNOUNCES CHANGES/CLARIFICATIONS TO SOFTWARE AND SUBLICENSING AGREEMENTS

"At the Business and Technical Seminars held March 3-4 and March 6-7, Dave Frasure, Sales Manager. Software Sales and Licensing, described several modifications that will be made to AT&Tís software contracts

"These changes are in response to direct feedback from AT&Tís licensees and are intended to make the contracts more responsive to the needs of the licensees. The following is a summary list of the changes

"Changes to the Software Agreement . . .

"Clarification of Ownership of Derived Works

"ē Language changes will be made to clarify ownership of modifications or derivative works prepared by a licensee."

Then in the August 1985 newsletter, the clarification was to the exact section we find in the Daimler Chrysler contract:

"Section 2.01 - The last sentence was added to assure licensees that AT&T will claim no ownership in the software that they developed -- only the portion of the software developed by AT&T."

You'll recall that the newsletter described itself like this:

"$ echo is the newsletter published by the AT&T Software Sales and Licensing organization for licensees of UNIX* System V.

"Licensees for UNIX Software products and services are located throughout the world. Having a customer network this large poses a special problem in establishing effective communication lines. This newsletter is designed to make our organization more responsive to our customers' needs through a structured information dissemination medium.

"The purpose of $ echo is to reach all UNIX System V licensees through one defined medium. It serves as a consistent channel of communication to our licensees and keeps them abreast of any product announcements, policy changes, company business and pricing structures."

I'd have to say it just doesn't get any clearer than this.


  


The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract | 339 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contrac
Authored by: Anonymous on Thursday, March 18 2004 @ 02:16 AM EST
For us non-native-english-speakers: What does "we have an easement through
the back of the property" mean?

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contrac
Authored by: Anonymous on Thursday, March 18 2004 @ 02:28 AM EST
Ah, I recognize the description, if not the term.

So, how is *that* relevant in any way to the case at hand?
Only part I can see where that would fit is in interpreting
that famously fuzzy paragraph in th Novell-SCO purchase
agreement. I don't see how it would apply to IBM...

[ Reply to This | # ]

Corrections
Authored by: John on Thursday, March 18 2004 @ 02:29 AM EST
s/Supplem,ents/Supplements/
s/perpare/prepare/
s/rrelating/relating/
s/It's contract as explained/Its contract as explained/

---
JJJ

[ Reply to This | # ]

  • Corrections - Authored by: Anonymous on Thursday, March 18 2004 @ 04:03 AM EST
  • Corrections - Authored by: PJ on Thursday, March 18 2004 @ 08:08 AM EST
    • Corrections - Authored by: Anonymous on Thursday, March 18 2004 @ 11:24 AM EST
      • Corrections - Authored by: Avenger on Thursday, March 18 2004 @ 12:29 PM EST
        • Corrections - Authored by: Anonymous on Thursday, March 18 2004 @ 01:51 PM EST
  • Italics? - Authored by: Anonymous on Thursday, March 18 2004 @ 08:43 AM EST
  • New URL's - Authored by: Anonymous on Thursday, March 18 2004 @ 03:52 PM EST
Dills?
Authored by: RSC on Thursday, March 18 2004 @ 02:41 AM EST
Is SCo deliberately missing these points, or is Boise a complete dill?

I find it hard to believe that. I have this sinking feeling that we are all
missing something. I just can't understand their actions.

Maybe it's not worth hurting my brain trying to work it out. :)

RSC.


---
----
An Australian who IS interested.

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contrac
Authored by: Anonymous on Thursday, March 18 2004 @ 02:52 AM EST
Doesn't The chrysler agreement read by itself without reference to the
clarification in $echo seem to uphold SCO's position ?

If the licensee makes a modification, AT&T makes no claim to that
modification only if one condition is satisfied:

- the modification should not be part of a SOFTWARE PRODUCT

From the definition of SOFTWARE PRODUCT ("SOFTWARE PRODUCT means materials
such as COMPUTER PROGRAMS, information used or interpreted by COMPUTER PROGRAMS
and documentation rrelating to the use of COMPUTER PROGRAMS"), that term
applies to just about any computer program. So it would seem that all
modifications are part of some SOFTWARE PRODUCT and hence owned by AT&T.

If AT&T really wanted to clarify that it does not own the modification the
contract should have defined SOFTWARE PRODUCT as one of the programs/code
offered by AT&T using language like:

- "SOFTWARE PRODUCT means materials offered by ATT-IS such as COMPUTER
PROGRAMS, information used or interpreted by COMPUTER PROGRAMS and documentation
relating to the use of COMPUTER PROGRAMS" or should have referred to.

or qualified the term "SOFTWARE PRODUCT" in the the new line in the
contract ("AT&T-IS claims no ownership interest in any portion of such
a modification or derivative work that is not part of a SOFTWARE PRODUCT")
with perhaps something like:

- "... a SOFTWARE PRODUCT identified in the one or more Supplements"

or

- "... such SOFTWARE PRODUCT" so that it can be read in context

instead of just "... a SOFTWARE PRODUCT".

What do you think ?

[ Reply to This | # ]

Parody: Dar's Get The Bird Address
Authored by: grouch on Thursday, March 18 2004 @ 03:17 AM EST
Dar's Get The Bird Address

Four score and seven biweeks ago, our predecessors bought Unix, we own that, we paid hundreds of millions for that, so let's just look at how this nation was conceived in profit, which we dedicate to, see our proposition is that you can't have a free lunch.

Now we are engaged in a great litigate or license war, testing whether, you see this Linux, that's free, and no one company owns that, but our economy won't endure if there is no protection for the intellectual property. So we are in court to protect our IP, to stake out, as it were, our portion of the land and hold our utility easement, which we bought with millions of dollars and development. This is a proper and fitting thing for our company to fight for our rights and our property.

But in a larger sense--we can't violate our NDAs--we can't show this code--we can't even read this code, which we have pledged to our licensees to hold confidential. The developers of Unix, that made it enterprise-ready, with concentrated corporate investment and you see you can't develop Linux like that without the funding and the research. The world, in an intellectual property sense, will, as it were, not rely on Torvalds remembering what he coded, but you can do a Google search on the files, and we've shown those and they're in there and when they said show us the code, well, we did that. Linux was unfinished work until IBM started putting in advanced Unix technology, and they failed to honor our contracts which they were obligated to do and we expect, in court, to get the full measure of what they devoted to putting into Linux, and we want this resolved so that our economy, which is based on profit of our American corporations, by those who invest in the research and the equipment and the development, for their valuable intellectual property, will not be wiped from the earth by the attacks of the ill-founded and unConstitutional GPL of the Free Software Foundation.

[ Reply to This | # ]

typo?
Authored by: ram on Thursday, March 18 2004 @ 03:24 AM EST
In the quotation of Section 2.01 of Daimler-Chrysler's AT&T UNIX contract:

"AT&T-IS grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplem,ents hereto,[....]"

the word "Supplem,ents" appears to have an extraneous comma and should be "Supplements".

[ Reply to This | # ]

Missing Angle?
Authored by: Magpie on Thursday, March 18 2004 @ 03:26 AM EST
Darl, in his interview with Dan Farber was asked about the echo newsletter, and his response was:

"We'll be glad to take our contracts against the newsletter. OK? If you look at what the newsletter is claiming, it's claiming that you, in fact, own the derivative work. We've said that from the very first filing in the IBM case. IBM owns their derivative works. That's what the newsletter says. We're saying we have an easement through the back of the property."

Nobody seems to have commented on a scenario that seems to be implied by this statement that SCO are arguing that although they recognise IBM owns the derivative work, the contract terms related to confidentiality of the code encompasses all of Unix including the bit that IBM own.

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Authored by: Anonymous on Thursday, March 18 2004 @ 03:43 AM EST
the easement proposition is intriguing.

ibm granted att certain rights to use ibm's unix-based derivative works. that's
the easement. the origin of those derivate works is not material.

sco eventually buys those rights.

ibm subsequently acts to diminish the value of those rights by restricting or
encumbering the easement or by granting a similar or competing easement to
another party, eg by incorporating even just similar functionality in a
competing operating system. the origin of these works is not material.

sco sues for what is effectively the diminished value of the easement.

wonder what the case law says about that?

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Authored by: thadco on Thursday, March 18 2004 @ 04:06 AM EST
If you read the newsletter carefully, the language can be interpreted to mean
that all future contracts will contain that language, but may not apply to
existing contracts.

I'm tired right now. Does that make sense?

[ Reply to This | # ]

Third party docs
Authored by: borneo on Thursday, March 18 2004 @ 04:11 AM EST
Considering the speed of the disclosure of various documents on the internet and
specially on groklaw in connection with Scog suits, I wonder if a Judge is bind
to the papers that the parties put on the stack.
For example in the Ibm-Scog case that concerns heavely the GPL, one public
document may appears but not in the ibm or scog interest and by consequence not
put under the judge eyes by any of the parties.
Has the Judge any kind of initiative to grows the stack ?
May the Judge refers to outside documents and how ?

Ianal and french

[ Reply to This | # ]

SCO got it backwards again?
Authored by: Anonymous on Thursday, March 18 2004 @ 05:01 AM EST
Since it is IBM's derivative work that is walled in by UNIX and not the other way round, shouldn't any easement give IBM access rights to SCO's UNIX?

I mean, SCO can use all of their UNIX property (assumed it is their property) without access to IBM's work. Why would SCO need and get an easement to IBM's work?

[ Reply to This | # ]

Quote DB
Authored by: dentonj on Thursday, March 18 2004 @ 05:09 AM EST
The Quote DB seems to be failing behind. I couldn't find the quote from Darl
McBride, "You don't call up your auto insurance company and say, 'Hey, I
didn't get in a car wreck.'"

[ Reply to This | # ]

  • Quote DB - Authored by: dentonj on Thursday, March 18 2004 @ 05:11 AM EST
  • Quote DB - Authored by: PJ on Thursday, March 18 2004 @ 07:50 AM EST
Could Sun hold a key to SCO's future?
Authored by: Anonymous on Thursday, March 18 2004 @ 05:16 AM EST
Hi.
a few days ago there was a link to this articleon zdnet
I think It deserves a headline on its own

Snip:
BSD: The potential short circuit to SCO's case If there's an opportunity for the cases to proceed out of order, it's because the IP rights (IPR) that go with Unix might never have been enforceable in the first place. In other words, the copyrights might not have been enforceable, even back in the 1970's and 1980's when AT&T owned them. If AT&T's IPR wasn't enforceable, then it stands to reason that the IPR of all other subsequent owners (Unix Systems Laboratories, Novell, the old SCO, Caldera, and now the new SCO) weren't enforceable either.

If the IPR turns out to be useless, it will turn out that Novell bought the Brooklyn Bridge as well and subsequently passed it along to SCO. Worse for SCO, if there's essentially no IPR to own, then the ownership issues underlying the suits are moot.

As I noted earlier, the answer to the question of enforceable IPR may reside in a sealed settlement to a 1992 case that was brought against both the University of California at Berkeley and Berkeley Systems Design, Inc. (BSDi) by Unix Systems Laboratories (USL).

Have a nice day.
S.

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Authored by: hal9000 on Thursday, March 18 2004 @ 05:51 AM EST
As I recall, IBM has asked for licence contracts
from other companies in it's discovery.

This maybe because they realise that contracts
from 1988 onwards incorporate the 1985 $ echo Newsletter Clarification
On Derivatives.

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Authored by: blacklight on Thursday, March 18 2004 @ 06:01 AM EST
"The purpose of $ echo is to reach all UNIX System V licensees through one defined medium" [my bolding and my italics]

In other words, anything that's written in that newsletter is much stronger than your everyday memo by a midlevel AT&T executive - the type of memo that usually gets entered into evidence. And I note that the newsletter is a simplex medium of communication: from AT&T to its licensees only - not the other way around, and not duplex (both ways). On top of it, the AT&T newsletter gets entered as part of the AT&T contract by none of than the SCO Group in its suit against DC: I just don't see how the SCO Group is going to prevent IBM from entering the AT&T newsletter as evidence, given its relevance in clarifying - not modifying, mind you - the AT&T contract. It looks as if the SCO Group was better off not suing DC in the first place. And right now, the SCO Group is probably dearly wishing that groklaw had never been born, and I expect that our favorite cowboy Darl is going to have a cow this morning. This episode is only the latest in a series that shows just how unilaterally hazardous the SCO Group is to anyone who would be its business partner

I am not using exclamation points anywhere in this post because I'd end up using them everywhere.

[ Reply to This | # ]

This should be sufficient info for a judgement
Authored by: Anonymous on Thursday, March 18 2004 @ 06:41 AM EST
Well doesn't that beat all! SCO sues a company which just happens to have
license clarification information that blows SCO's interpretation out of the
water. Its amazing how these things turn out. SCO carries on like an idiot and
the only people siding with SCO are those who stand to gain from the FUD cloud
created by SCO's foolish actions...think about it! for the cost of a nice
corporate jet Caldera/SCO has been able to stress the lives of a great many
people. Keep that in mind the next time you see a very common corporate jet at
an airport. Perhaps this lesson in the extent of IP abuse well have
reprecussions and actually cause a re-thinking and re-evaluation of the current
IP structure.

[ Reply to This | # ]

Off topic Q for PJ
Authored by: Anonymous on Thursday, March 18 2004 @ 06:52 AM EST
PJ are you planning to cover the current action targeted against Lindows?

rgds

ps. Is there a specific section to post general stuff to such as this question?

[ Reply to This | # ]

The 1985 $ echo Newsletter spelling correction...
Authored by: entre on Thursday, March 18 2004 @ 06:57 AM EST
Change spelling on rrelated below to related...


The Chrysler contract defines SOFTWARE PRODUCT like this:


"SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS, information
used or interpreted by COMPUTER PROGRAMS and documentation rrelating to the use
of COMPUTER PROGRAMS. Materials available from AT&T-IS for a specific
SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE PRODUCT. Certain
SOFTWARE PRODUCTS available under this Agreement may contain materials prepared
by other developers."

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contrac
Authored by: Anonymous on Thursday, March 18 2004 @ 06:59 AM EST
I wonder... If SCOX believes they have some rights to IBM developed code, when
IBM discloses these to SCOX as part of discovery, whether SCOX will sell/show it
to other parties (since they believe they have rights)...

[ Reply to This | # ]

Might it Possibly Be that The SCO Group are being Hypocrites?
Authored by: Simon G Best on Thursday, March 18 2004 @ 07:14 AM EST

IANAL, etc, but I'm just getting the impression that The SCO Group are expecting their (claimed) Unix contracts to be even more virulent than they seem to protest about the GPL being.

---
Has the term 'corporate insanity' been coined, yet?

[ Reply to This | # ]

keep it simple
Authored by: legal insanity on Thursday, March 18 2004 @ 07:16 AM EST
this is so simple, since most of SCOG legal pleadings rely upon their unusual
view of IBM's derivative work, and now, it's back to show sys V code in what ibm
donated to linux, or let's get on with the counter suit. SCOG's legal scope has
just been cut to one point, the pulling of ibm's license now, is in real doubt,
fact, most of SCOG's legal theories hinge on the derivative work, now there's
not much left, not even a fishing trip into aix.

That has to hurt!

---
Insanity Pleadings is the only Sensible Defense
To bad for SCOG, No INSANITY PLEAD in these Civil Matters

[ Reply to This | # ]

Asset Purchase Agreement [Amendment] - Caldera Systems Inc. and Caldera Inc. (Sep 1, 1998)
Authored by: ravenII on Thursday, March 18 2004 @ 08:03 AM EST
Here is the link.(s)
http://contracts.onecle.com/sco/caldera.apa.1998.09.01.shtml
and amendment
http://contracts.onecle.com/sco/caldera.apa1.1998.09.01.shtml
a part from it,

A. Seller is in the business of developing, marketing, licensing, selling
and distributing Linux computer software and other software, products and
services relating to Linux (the "Business"). Seller desires to sell to
Purchaser
all of Seller's assets used in or relating to the Business.


Funny thing is that they sold a LINUX business not UNIX! May be well trained
legal personnel could delve in to these

Sorry, posted earlier in a subsection.

---
"Snowflakes are one of nature's most fragile things,
but just look what they can do when they stick together."

[ Reply to This | # ]

SCO's Complaint Materially Misrepresents Section 2.01
Authored by: gvc on Thursday, March 18 2004 @ 08:08 AM EST
I'm not sure that the full impact of this information has been made clear, so
I'm repeating it.

In their complain SCO's quotes a version of section 2.01 that is NOT the same as
the one in the DC contract. It differs materially in SCO's favour.

In the past I have accused SCO of omitting information that did not support
their case. In this case they are flat-out giving false material information to
support their case.

Why isn't this perjury?

[ Reply to This | # ]

The usl - ucb sealed agreement
Authored by: borneo on Thursday, March 18 2004 @ 08:51 AM EST
BSD rights are attached to the USL-UCB sealed settelment.

It has been a great game to guess what was actually in the so called sealed
agreement. IMHO it doesn't matters. Because the agreement itself has a real
impact of what is cover by the copyright and what is not, (it constitute an
easement in favor of third party )the real owner of the so called copyright of
the system V UNIX must at least have the original document in his possession.
Who can shows it in his hands may claim is the actual owner of the copyrights
(amended by the settlement)of System V. No need to open it.
Am I missing something ?

Ianal & french

[ Reply to This | # ]

This relates to Daimler Chrysler...
Authored by: Night Flyer on Thursday, March 18 2004 @ 08:51 AM EST
"AT&T-IS grants to LICENSEE a personal, nontransferable and
nonexclusive right to use in the United States each..."

I wish to take you back to the Daimler Chrysler question.
In the discussion, it said Chrysler Corporation had a License with AT&T
relating to the use of UNIX. I think I could argue that the Chrysler portion of
the corporation could claim some continuation of the AT&T contract/license.
I am not so sure about the Daimler portion.

The question not asked/not answered is: Did Daimler Benz (I think that was its
name before) have a UNIX license for its operations outside the USA (Germany for
example)?

-----------------------------
My Clan Motto: Veritas Vincit: Truth Conquers

[ Reply to This | # ]

A History of Unix as Relevant to SCOX
Authored by: Anonymous on Thursday, March 18 2004 @ 09:31 AM EST
ZD Net

Could Sun hold a key to SCO's future?
By David Berlind
March 14, 2004

http://techupdate.zdnet.com/techupdate/stories/main/Could_Sun_hold_a_key_to_SCO.
html

If you want to understand the issues you should read this.

[ Reply to This | # ]

The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contract
Authored by: soronlin on Thursday, March 18 2004 @ 09:53 AM EST
Christmas has arrived early. The contract wording is better than we dared hope.
Not only does it clarify ownership, it totally removes any hint of the easement
that SCO read into IBM's contract.

Let me re-load your gun Darl, I think you might want to shoot your own foot some
more.

[ Reply to This | # ]

We have to block the bigger onslaught
Authored by: rss on Thursday, March 18 2004 @ 10:10 AM EST
"We're saying we have an easement through the back of the property."

I suppose now we have heard it all. Its clear that they cannot be serious - they
are not talking copyright law, or patent right law, or any other law that can
even vaguely be related to IP in software - they are just talking crap to spread
the FUD and the RISK message. I don't believe they are serious about winning any
of their cases, althoug they may have an ouside chance with the Novel litigation
if it comes down to contract interpretation. This can surely be nothing else
than diversion to set up the backgound for something much bigger. Perhaps
Microsoft may play a much more visible and prominent role in the near future.


Bruce Perense read the situation a long time ago when he spoke about patents
being the next best battlefield to launch a new probably avalanche of attacks
against Open Source.

*The battle in Europe regarding sofware patents is crucial.*

We need to focus our efforts on that front cause I'm not sure if everybody are
aware of what is really at stake there.

The battle in USA has already been lost - as RSM put it - this is a political
battle and In my opinion can only be won in the USA if Europe stays patent free.

[ Reply to This | # ]

OT: Insuance for F/OSS debunked?
Authored by: Turing_Machine on Thursday, March 18 2004 @ 10:42 AM EST
I know this has been a sticking point for many people on this site, and I have
kept quiet, waiting for clarification, and have been doing my research, and I
came to a pretty simple conclusion.
I don't think that end-user indemnification is necessary. Exactly the same
reasons that it was unnecessary for Redhat to offer indemnication, it is
unnecessary for an end-user to buy insurance. I know that there may be risks
that have to be addressed for companies that sell distributions, but for an
end-user, I can not justify indemnication.
I think that this Intellectual Property has been stretched to somehow equate to
actual property, in which the recipient of stolen property can be responsible,
regardless of their participation. Although in practice, an unwiting purchaser
of stolen property is almost NEVER prosecuted, in this case, we are putting the
onus of researching Intellectual ownership, beyond the fact that it is
explicitly claimed under another license, and therefore, ownership is already
claimed, and to a point, proven.
Can you require the end-user to do research beyond this? I don't think so. For
a company that distributes that code, especially for money, I believe there is a
greated requirement to insure that the Intellectual Property is properly
contributed, etc.
Therefore, I will not purchase any type of insurance that is based on such
assumptions of individual responsibility. The end-user has done their due
dilligence when they read and accept the GPL.

---
No, I'm not interested in developing a powerful brain. All I'm after is just a
mediocre brain, something like the President of the AT&T --Alan Turing

[ Reply to This | # ]

Creative quoting of almost EVERY provision of the agreement
Authored by: Anonymous on Thursday, March 18 2004 @ 11:05 AM EST
SCO appears to be very creatively quoting every provision in the contract, in the letter to Chrysler. Some of the most obvious creativity is illustrated below with bold emphasis (I have not bothered marketing differences such as [SCO] for [AT&T-IS] except when SCO left out the [])



SCO letter:
You were granted under Para. 2.01 of the Agreement:

[A] personal, nontransferable and nonexclusive right to use in the [Authorized Country] each Software Product identified in one or more Supplements hereto, solely for Licensee's own internal business purposes and solely on or in conjunction with Designated CPU's for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based such Software Product, provided that the resulting materials are treated hereunder as part of the original Software Product.

The Software Product thus includes more than the base System V release licensed by you. Software Products also includes: (a) the UNIX software release based on UNIX System V prepared by your UNIX vendor and (b) modifications to, or derivative works based on, any UNIX product made by you. Limitations on Use of UNIX Technology


Chrysler Contract:
2.01 AT&T-IS grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the United States each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for LICENSEE'S own internal business purposes and solely on or in conjunction with DESIGNATED CPUs for such SOFTWARE PRODUCT. Such 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 SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such SOFTWARE PRODUCT. AT&T-1S claims no ownership interest in any portion of such a modification or derivative work that is not part of a SOFTWARE PRODUCT.



SCO letter:
Para. 2.06. No right is granted by this Agreement for the use of Software Products directly for others, or for any use of Software Products by others. [This is expanded under 2.06 under some contracts.]


Chrysler Contract:
2-06 No right is granted by this Agreement for the use of SOFTWARE PRODUCTS directly for others, or for any use of SOFTWARE PRODUCTS by others, except LICENSEE'S contractors pursuant to Section. 2-02, unless such uses. are permitted for a particular SOFTWARE PRODUCT by a specific provision in the Schedule for such SOFTWARE PRODUCT- For example, use of a SOFTWARE PRODUCT in a time-sharing service or a service-bureau operation is permitted only pursuant to such a specific provision.



SCO letter:
Para. 4.01. Licensee agrees that it will not, without prior written consent of [SCO], export, directly or indirectly, Software Products covered by this Agreement to any country outside the[Authorized Country].


Chrysler Contract:
4.01 LICENSEE agrees that it will not, without the prior written consent of AT&T-IS, export, directly or indirectly, SOFTWARE PRODUCTS covered by this Agreement to any country outside of the United States- LICENSEE also agrees that it will obtain any and all necessary export licenses for any such export or for any disclosure of a SOFTWARE PRODUCT to a foreign national.



SCO letter:
Para. 7.05(a). Licensee agrees that it shall hold all parts of the Software Products subject to this Agreement in confidence for [SCO]. Licensee further agrees that it shall not make any disclosure of any or all of the Software Products (including methods or concepts utilized therein) 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 such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.


Chrysler Contract:
7-05 (a) LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T-IS. LICENSEE further agrees that it shall not make any disclosure of any or all of such SOFTWARE PRODUCTS (including methods or concepts utilized therein) to anyone, except to employees and contractors 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. If information relating to a SOFTWARE PRODUCT subject to this Agreement at any lime becomes available without restriction to the general public by acts not attributable to LICENSEE, its contractors or employees of either, LICENSEE'S obligations under this section shall not apply to such information after such time.



SCO letter:
Para. 7.08. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by Licensee and any purported assignment or transfer shall be null and void.


Chrysler Contract:
7.08 Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by LICENSEE and any purported assignment or transfer shall be null and void.



SCO letter:
Para. 7.09. [N]othing in this Agreement grants to Licensee the right to sell, lease, or otherwise transfer or dispose of a Software Product in whole or in part.


Chrysler Contract:
7.09 Except as provided in Section 7.05(b), nothing in this Agreement grants to LICENSEE the right to sell, lease or otherwise transfer or dispose of a SOFTWARE PRODUCT in whole or in part.

[My comment - so what is 7.05(b)???), Answer...]

(b) Notwithstanding the provisions of Section 7-05(a), LICENSEE may distribute copies of a SOFTWARE PRODUCT, either in modified or unmodified form, to third parties having licenses of equivalent scope herewith from AT&T-IS (or a corporate affiliate or authorized distributor thereof) for the same SOFTWARE PRODUCT, provided that LICENSEE first verifies the status of the recipient by calling AT&T-IS at 800-828-8619 (or other number specified by AT&T-IS). AT&T-IS will give oral verification of the recipient's status for recipients in the United States and written verification for recipients outside the United States- LICENSEE shall maintain a record of each such distribution and, for each quarterly period (ending on March 31st, June 30th, September 30th and December 31st) during which any such distribution occurs, forward a copy of such record for such period to AT&T-IS at the correspondence address specified-in Section 7.10(b) within thirty (30) days of the end of such period. Such record shall include, for each such distribution. the identity of the recipient, the date of verification, the name of the person at AT&T-IS providing verification and the date of distribution. LICENSEE may also obtain materials based on a SOFTWARE PRODUCT subject to this Agreement from such a third party and use such materials pursuant to this Agreement, provided that LICENSEE treats such - materials hereunder the same as such SOFTWARE PRODUCT-



SCO letter:
You are also obligated to certify proper use of the Software Products by you under the Agreement, as required by the following Para. 2.05:

On [SCO's] request, but not more frequently than annually, Licensee shall furnish to SCO a statement, certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder and stating that the use by Licensee of Software Products subject to this Agreement has been reviewed and that each such Software Product is being used solely on such Designated CPUs (or temporarily on back-up CPUs) for such Software Products pursuant to the provisions of this Agreement.

Accordingly, SCO requires written certification by your authorized representative under Para. 2.05 within 30 days of receipt of this letter. Such written certification must include statements that:

[My comment - followed by a long list of things that are not in the Chrysler contract, which I wouldn't bother repeating]


Chrysler Contract:
2.05 On AT&T-IS'S request, but not more frequently than annually, LICENSEE shall furnish to AT&T-IS a statement, certified by an authorized representative of LICENSEE, listing the location, type and serial number of all DESIGNATED CPUs hereunder and stating that the use by LICENSEE of .SOFTWARE PRODUCTS subject to this Agreement has been reviewed and that each such SOFTWARE PRODUCT is being' used solely on DESIGNATED CPUs (or temporarily on back-up CPUs) for such SOFTWARE PRODUCTS in full compliance with the provisions of this Agreement-

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[OT] SCOX dropping like a stone...
Authored by: Anonymous on Thursday, March 18 2004 @ 11:24 AM EST

Opened at $9.00, is now $8.55. :)

Keep up the good work Darl.

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Possible revision history in the Contact header
Authored by: Terry on Thursday, March 18 2004 @ 11:35 AM EST

There's some additional information in IBM, Sequent and DC SOFT agreements that may bear some investigation if, and when, more of the SOFT contracts come to light. It would appear that revision information is contained in the document header, i.e. the date of the page revision.

That could mean that through comparison of pages is possible to determine what changes were made in the AT&T "stock" contract and when they were made. Then attempt to correlate this information with additional AT&T communications.

If this theory is correct, it would appear, based on the DC contract, that there was a major revision in the SOFT language on July of 1985. And there were some additional revisions in October 1985 and March of 1986.

The IBM, Sequent and DC SOFT agreements all have the same prefix on the header; SS-Soft. Corp. 030184. However, the suffix varies especially in the DC agreement.

IBM SOFT-00015 (Dated 2/1/85 length = 6 pages)
All pages) SS-Soft. Corp. 030184

The Sequent agreement appears to have a revision on the first page as of 01/03/85 which is prior to the Sequent contract date.

Sequent SOFT-000321 (Dated 4/18/85 length = 6 pages)
p1) SS-Soft. Corp. 030184-010385
Remainder of pages) SS-Soft. Corp. 030184

The Chrysler agreement seems to be based in the most part on revisions occuring in July of 1985. This corresponds to dates in the Echo newsletter announcing intent and then furnishing revised language to the contracts. Also, there appear to be other revisions which increased the total length of the contract to 8 pages. Some of the revision are undoubted related to the change in name from AT&T TECHNOLOGIES, INC. ("AT&T") to AT&T INFORMATION SYSTEMS INC. ("AT&T-IS")

Chrysler SOFT-01342 (Dated 9/2/88 length = 8 pages)
p1) SS-Soft. Corp. 030184-070185
P2) SS-Soft. Corp. 030184-070185
p3) SS-Soft. Corp. 030184-070285
p4) SS-Soft. Corp. 030184-070185
p5) SS-Soft. Corp. 030184-070185
p6) SS-Soft. Corp. 030184-070285
p7) SS-Soft. Corp. 030184-101485
p8) SS-Soft. Corp. 030184-031986

It will be interesting to see if the courts interpret the Echo newletter as an unilateral contact granting additional rights. Especially in light of the revision history. IANAL but my contract law classes said the "publication" of an offer (I think the newletter qualifies for that) and "acceptance by performance" contstitue a valid contract. TSG can hardly state that IBM didn't perform as this is part of their complaint.

We'd need more SOFT agreements to fill in the blanks, but there does appear to be a trend that matches the Echo newsletter information and establishes AT&T's intent to modify contracts.

---
"You can fool some of the people all the time. You can fool all the people some of the time. But you can't fool all the people all the time." --Abraham Lincoln.

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Two licenses for the same code
Authored by: Anonymous on Thursday, March 18 2004 @ 11:48 AM EST
It seems that SCO doesn't understand that you can release the same code
under two licenses.

When you intermingle your own work with SCO's code, you must treat the
combination of the two as if it was 100% SCO, in terms of NDA, etc.

Thus, SCO is saying "look, there's this code, you had to treat it like it
was
ours." They're ignoring the fact that the requirement to treat it as SysV
code is
only present when it is intermingled with SysV code. When it's independant of
SysV code, those restrictions don't apply.

IBM owns the code. They have full license flexibility on that code. Sometimes,
it's under SysV/SCO's licensing restrictions, other times it's under the GPL.
Maybe you can license it under some other conditions if you give them
enough money.

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The 1985 $ echo Newsletter Clarification On Derivatives Appears in the 1988 Chrysler Contrac
Authored by: Anonymous on Thursday, March 18 2004 @ 12:00 PM EST
It is actually possible to own a derivative work, and not have the right to distribute it due to confidentiality agreements. This may be the crux of SCOs argument. I have been a party to many consulting contracts with just this provision. For example, you develop a widget for a company, and get paid for the design. You have signed an NDA associated with it. Later, on your own money, you develop an improved widget, derived from the original widget. You own the improved widget, and if the original company wants it, they have to pay you for it. But you do not have the right, depending on the specific NDA, to distribute and sell your improved widget. This is why NDA's can be so insidious.

My recollection of the IBM contract stream, though, is that there was a side letter that declared any IBM developments not to be considered a derived work if they did not have the actual SysV code in front of them at the time of the development of the new piece of code. I am just working from memory. But I think it is important that the JFS & RCU and other code not be considered a derivative work.

All of this will eventually settle out in the deep details of (not always logical) Copyright and Contract Law, and unfortunately not common sense.

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COMPUTER PROGRAMS in SOFTWARE PRODUCTS
Authored by: Anonymous on Thursday, March 18 2004 @ 01:14 PM EST
"SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS, information
used or interpreted by COMPUTER PROGRAMS and documentation relating to the use
of COMPUTER PROGRAMS. Materials available from AT&T-IS for a specific
SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE PRODUCT. Certain
SOFTWARE PRODUCTS available under this Agreement may contain materials prepared
by other developers."

"COMPUTER PROGRAM means ANY instruction or instructions, in source-code or
object-code format, for controlling the operation of a CPU"

ANY ? Does this include IBM ( let's be honest, that's who we are talking about
here ) written AIX-code becoming part of the SOFTWARE PRODUCT ?

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Easement in Novell vs SCO
Authored by: technoCon on Thursday, March 18 2004 @ 01:21 PM EST
When his Darlness asks, "What did we pay $100 million for when we bought
Unix from Novell?" Maybe the answer is an easement. Specifically, Novell
claims they retained ownership of Unix and that they sold SCO the right to
market it. Is this analogous to selling mineral rights to a land parcel?

I don't know whether this analogy helps or hurts Novell. The fact that Mr.
McBride used the term may indicate that he has thought about it. He may be
getting ready to cede ownership of Unix to Novell and developing a fall-back
position.

If I sell you mineral rights to my land and then permit another to extract ore
from it, then you'll probably bring action against me. There is probably case
law which might be brought to bear on this matter. Hopefully, Novell's lawyers
will research the implications before they stipulate anything.

In a parcel of land, there is a finite amount of ore. If I let someone else
extract ore, that hurts you by that much. In this domain, there's a finite
amount of "scarcity." Regulating "scarcity" delays
commoditizing this parcel of the noosphere. Thus, if Novell sold "mineral
rights" to SCO, then SCO might claim that Novell cannot permit 3rd parties
to use Unix.

Of course, all this is irrelevant to Linux unless SCO can prove it is a
derivative of Unix.

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Playground antics
Authored by: Anonymous on Thursday, March 18 2004 @ 01:32 PM EST
I read all this, and I keep remembering that book about learning everything you
really need to know in kindergarten. Sorry I don't remember the exact title, or
even the author.

Didn't we all learn early on, not to go punch the biggest kid on the playground
and then scream bloody murder when they pounded us into the dirt?

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Will video recording be allowed in court?
Authored by: Anonymous on Thursday, March 18 2004 @ 02:10 PM EST
I'd pay good money to watch a video clip of the Boise boys making the easement
argument, followed by a closeup of the judge's face. Any chance we could get the
judge's permission to have the event recorded?

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