decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text
Sunday, November 07 2004 @ 05:33 AM EST

Here, at last, thanks to rsmith, who was willing to take on such a task, we get to see an AT&T educational license [PDF], the one it entered into with the Regents of the University of California, effective as of 1983 and executed in 1984. This is the license agreement Otis Wilson talked about in his 1992 BSDi deposition.

As you will see, restrictive clauses that those deposed in the BSDi case were testifying about are found in this type of license. Obviously, a university computer science department would have different needs in a software license than a commercial company like IBM planning to develop software for marketing around the world. I have marked in blue text the parts that obviously would be particularly and laughably inappropriate for IBM.

For contrast, if you wish to review the IBM commercial license and its amendments and side letter, you can find them on the Legal Docs page, in the Contracts and Documents section. These are two very different licenses.

Ironically, SCO itself attached this as an exhibit to their Redacted Memorandum in Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004 [PDF], which it submitted to try to get IBM's summary judgment motions postponed. They assert it shows contradictory testimony and present it to the judge as evidence of a material fact in dispute, which is what you need to get past a summary judgment motion:

"Although IBM claims there is no issue of disputed fact on what it calls, for example, the dispositive contract issue in the case, IBM asks the Court to rely on the testimony of witnesses who previously gave sworn testimony that directly contradicts their current testimony on this key issue. See pp. 42-59, below. (In fact, what IBM labels SCO’s 'New-Found Contract Theory' is the very theory that these same IBM witnesses described under oath more than ten years ago, when they were immersed in the day-to-day issues, and before IBM came to represent them or fund their representation.) This flatly contradictory testimony, which IBM has had for months, obviously precludes any possibility that IBM’s new interpretation – its effort to rewrite history – could be undisputed as a matter of law."

As it happens, to me it merely proves that the BSDi depositions, such as Otis Wilson's, were about an entirely different license, for a very different purpose, and with a different licensee.

I have marked in red the wording in section 4.08 that SCO adores, about "methods and concepts", and upon which SCO has hung its hat and apparently also its theory of the case, poor things.

This was a paper exhibit, and the document is very hard to read even in the original, let alone the PDF we made of it, so you will find places where we placed question marks or just the word "illegible" in brackets, where we were not positive, and note that the PDF includes at the end pages and pages of lists that we couldn't make out clearly enough to try to transcribe. I also noted in working on this that while we have the body of the text of SCO's Redacted Memorandum, #IBM-291, transcribed, we never did the Table of Contents. If anyone would be willing to do that for us to make our archives complete, that would be wonderful.

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

Sys. V. Ed.-040183-1

EDUCATIONAL SOFTWARE AGREEMENT

Effective as of July 1, 1983, AMERICAN TELEPHONE AND TELEGRAPH COMPANY ("AT&T"), having an office at 195 Broadway, New York, New York 10007, and THE REGENTS OF THE UNIVERSITY OF CALIFORNIA ("LICENSEE"), having an office at Berkeley California 94720, agree as follows:

AT&T grants fee-free to LICENSEE a personal, nontransferable and nonexclusive right to use LICENSED SOFTWARE subject to the terms and conditions in Appendix A attached hereto and made part hereof and subject to the receipt of the service charge specified below. Such right to use includes the right to modify LICENSED SOFTWARE and to prepare derivative works based on LICENSED SOFTWARE, and shall be limited solely to uses for academic and educational purposes and solely on or in connection with the use of DESIGNATED CPUs. LICENSED SOFTWARE means all or any portion of the computer programs, other information and documentation: (i) listed in the attached Schedule for UNIX# System V, VAX Version and any additional Schedule forwarded pursuant to Section 2.03 of Appendix A, (ii) furnished to LICENSEE by AT&T or any of its associated companies in conjunction with any provision of support services for UNIX System V, or (iii) prepared by LICENSEE as a modification or a derivative work based on any of the materials so listed or furnished. DESIGNATED CPUs means any central processing unit ("CPU") identified by location, type and serial number as follows:

(See Attached List)

and any additional or replacing CPU subsequently approved by AT&T.

LICENSEE shall not include in its curriculum any course of instruction in which the source code or other representation of the internal operation of the LICENSED SOFTWARE is disclosed or discussed, or prepare or publish any documentation disclosing or describing such code or representation.

LICENSEE shall pay to AT&T, within sixty (60) days after execution of this agreement by it and AT&T, a nonrefundable service charge of $800.00 for the CPUs listed in this agreement. AT&T or one of its associated companies will deliver one copy of the LICENSED SOFTWARE listed in the attached Schedule within a reasonable time after receipt of such payment. For each additional CPU approved by AT&T, LICENSEE shall pay AT&T an additional service charge of $400.00. All amounts are in U.S. funds. LICENSEE agrees not to transmit the LICENSED SOFTWARE, directly or indirectly outside the United States.

AMERICAN TELEPHONE AND THE REGENTS OF THE
TELEGRAPH COMPANY UNIVERSITY OF CALIFORNIA
By: ____[signature O.L. Wilson]____ By:___[signature Katherine R. DeLucchi]___
Director of Technology Licensing Title: Material Manager [handwritten]
Date: AUG 15 1984 [stamped] Date: 7-27-84 [hand-written]

Attachment:


Location Type Serial Number
University of California - San Diego
1426 Applied Physics and Math Building
La Jolla, California 92093
VAX 11/780 7902942[3?]K
Computer Science Department
5438 Applied Physics & Math
Building, Muir Campus
VAX 11/780 28680
Biology Department
2309 Bonner Hall
PDP 11/45 141
Institute for Cognitive Science
1550 Psychology and Linguistics
Prime Building
VAX 11/750 SM82F28302K
PDP 11/45 422
Department of Chemistry
3120 Urey Hall, Revelle Campus
VAX 11/780 78082[?]9N
VAX 11/750 82C27975K
PDP 11/32 AG33573
PDP 11/34 AG28361
CAL Data 135 DE001019
CAL Data 135 DS00044
CAL Data 135 DS00171
Department of Music
Center for Music Experiment
Building 408, Warren Campus
VAX 11/780 N180028766K
PDP 11/55 NM81C28461K
Computer Center
1426 Applied Physics &
Math Building
VAX 11/780 79029421K
VAX 11/780 82F28392K
VAX 11/780 82F28438K
University of California - Livermore (Davis)
Department of Applied Sciences
College of Engineering
Hertz Hall, Room 8
PDP 11/60 WM00273
University of California - Santa Cruz
Computer Center
34 Communications Building
PDP 11/34 AG10962
PDP 11/70 WM80027024K
PDP 11/70 10586
PDP 11/780 N179013841K
PDP 11/780 81C1G568K
415 Kerr Hall PDP 11/34 AG29220
68 Kerr Hall PDP 11/34 AG25851
125 Thinmann PDP 11/34 WM7702SPG10
298 Applied Sciences Builing PDP 11/34 24180
168 Natural Sciences 2 PDP 11/780 81014469K
250 Applied Sciences Building P[S?]P 11/780 81016455K

Attachment - page 2

Location Type Serial Number
University of California - Los Angeles
Computer Science Department
3292 Boelter Hall
405 Hilgerd Avenue
VAX 11/780 SV02917
Office of Academic Computing
4328 Math Sciences Addition
405 Hilgerd Avenue
Los Angeles, California 90024
VAX 11/750 82F23024K
VAX 11/750 82F23025K
VAX 11/750 82F23026K
VAX 11/750 82F23027K
VAX 11/750 82F23028K
Computer Science Department
3286 Boelter Hall
VAX 11/750 82F23019K
VAX 11/750 82F23020K
VAX 11/750 82F23021K
VAX 11/750 82F23022K
VAX 11/750 82F23023K
VAX 11/750 82F23029K
VAX 11/750 82F23030K
VAX 11/750 82F23031K
VAX 11/750 82F23032K
VAX 11/750 82F23033K
Computer Science Department
3420 Boelter Hall
VAX 11/750 82C25198K
VAX 11/750 82C22109K
VAX 11/750 82C22238K
VAX 11/750 82C22263K
VAX 11/750 82C22264K
VAX 11/750 82C22265K
VAX 11/750 82C22266K
Office of Academic Computing VAX 11/750 81C24818K
4328 MSA

Sys. V-Ed.-040183-2

Appendix A

TERMS AND CONDITIONS FOR
EDUCATIONAL SOFTWARE AGREEMENT

USE OF LICENSED SOFTWARE

1.01 (a) Uses for "academic and educational purposes" means uses directly related to teaching and degree-granting programs and uses in noncommercial research by students and faculty members, including any uses made in connection with the development of enhancements or modifications to the LICENSED SOFTWARE, provided that (i) neither the results of such research nor any enhancement or modification so developed is intended primarily for the benefit of a third party. (ii) such results, enhancements and modifications (all to the extent that they do not include any portion of LICENSED SOFTWARE) are made available to anyone including AT&T and its associate companies without restrictions on use, copying or further distribution, notwithstanding any proprietary right (such as a copyright or patent right) that could be asserted by LICENSEE, its students or faculty members and (iii) any copy of any such result enhancement or modification furnished by LICENSEE is furnished for no more than the cost of reproduction and shipping. Any such copy that includes any portion of LICENSED SOFTWARE may be furnished to others than AT&T and its associate companies only pursuant to the provisions of Section 4.08(c).

(b) Commercial use by LICENSEE of the LICENSED SOFTWARE or of any such result enhancement or modification is not permitted under this agreement. Such commercial use is permissible only pursuant to the terms of an appropriate commercial software agreement between AT&T and LICENSEE. Any such result, enhancement or modification may be developed further by LICENSEE for commercial use such as by developing software for license or for a third party only on CPUs covered by such a commercial software agreement and only provided that the result enhancement or modification in the form in which it exists when such a commercial software agreement is executed by LICENSEE, remains available to anyone as specified in Section 1.01(a)

1.02 At any time at AT&T'S request, LICENSEE will furnish in writing to AT&T a description of the use of LICENSED SOFTWARE sufficient to enable AT&T to verify that such a use is solely for academic and educational purposes.

1.03 A single back-up CPU may be used as a substitute for a DESIGNATED CPU without notice to AT&T during any time when such a DESIGNATED CPU is inoperative because it is malfunctioning or undergoing repair, maintenance or other modifications.

1.04 No right is granted for the use of LICENSED SOFTWARE, directly for any third person, or for any use by any third person of the LICENSED SOFTWARE.

ADDITIONAL OR REPLACING CPUs

2.01 LICENSEE may at any time request in writing that an additional CPU be made a DESIGNATED CPU or that a replacing CPU be substituted for a current DESIGNATED CPU. Any such request must include an identification of each such CPU by location, type and serial number and a description of the proposed use of the LICENSED SOFTWARE on each additional or replacing CPU sufficient to show that such use will be solely for academic and educational purposes. Any such requests shall become effective on agreement thereto in writing by AT&T and receipt by AT&T of the appropriate service charge.

2.02 LICENSEE may obtain additional copies of LICENSED SOFTWARE for use on additional DESIGNATED CPUs on payment of a distribution charge to AT&T for each copy. AT&T will quote the amount of such distribution charge on request.

2.03 There are different versions of LICENSED SOFTWARE for different types of CPUs. The Schedule(s) attached hereto and the version(s) of LICENSED SOFTWARE to be furnished hereunder are determined by the type(s) of CPU(s) specified in this agreement. If an additional CPU of a different type becomes a DESIGNATED CPU pursuant to Section 2.01 and a version of LICENSED SOFTWARE for such type is available from AT&T, AT&T will forward to LICENSEE an additional Schedule for such version. Within a reasonable time after such designation becomes effective and payment for the distribution charges is received, AT&T or one of its associated companies will furnish to LICENSEE a copy of such version in the form identified in such additional Schedule.

TERMINATION

3.01 If LICENSEE shall fail to fulfill one or more of its obligations under this agreement AT&T may, upon its election and in addition to any other remedies that it may have, at any time terminate all the rights granted by it hereunder by not less than two (2) months written notice to LICENSEE specifying any such breech, unless within the period of such notice all breaches specified therein shall have been remedied; upon such termination LICENSEE shall within thirty (30) days deliver to AT&T all documentation containing the LICENSED SOFTWARE and shall render unusable all LICENSED SOFTWARE placed in any storage apparatus.

MISCELLANEOUS PROVISIONS

4.01 LICENSEE assures AT&T that it does not intend to and will not knowingly, without the prior written consent, if required, of the Office of Export Administration of the U.S. Department of Commerce, Washington D.C. 20230, transmit directly or indirectly:

  1. the LICENSED SOFTWARE; or
  2. any immediate product (including processes and services) produced directly by the use of the LICENSED SOFTWARE; or
  3. any commodity produced by such immediate product if the immediate product of the LICENSED SOFTWARE is a plant capable of producing a commodity or is a major component of such plant;

to Afghanistan or to any Group P, Q, S, W, Y or Z country specified in supplement No.1 to section 320 of the Export Administration Regulation issued by the U.S. Department of Commerce. LICENSEE agrees that its obligations under this section 4.01 shall survive and continue after any termination of rights under this agreement.

4.02 LICENSEE shall pay all taxes, including any sales or use tax (and any related interest or penalty), however designated, imposed as a result of the existence or of this agreement, except any income tax imposed upon AT&T by any governmental entity in the Unites States. Fees specified in this agreement are exclusive of taxes. If AT&T is required to collect a tax to be paid by LICENSEE, LICENSEE shall pay such tax to AT&T on demand.

4.03 Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any patent or trademark. However, AT&T waives any rights it may have under patents with respect to the use, pursuant to the rights granted herein, of the part of LICENSED SOFTWARE, which is UNIX System V by LICENSEE, except to the extent that such patents apply (i) independently of the use of such part of LICENSED SOFTWARE, (ii) because a DESIGNATED CPU is used in combination with other hardware or (iii) because such [part?] of LICENSED SOFTWARE is modified from the version or versions furnished hereunder to LICENSEE by AT&T or an associated company thereof or is used in combination with other software.

4.04 This agreement shall prevail notwithstanding any conflicting terms or legends which may appear in the LICENSED SOFTWARE.

4.05 AT&T and its associated companies make no representations or warranties, expressly or impliedly. By way of example but not of limitation, AT&T and its associated companies make no representations or warranties of merchantability or fitness for any particular purpose, or that the use of LICENSED SOFTWARE will not infringe any patent, copyright or trademark. AT&T and its associated companies shall not be held to any liability with respect to any claim by LICENSEE or a third party on account of, or arising from, the use of such LICENSED SOFTWARE.

4.06 LICENSEE agrees it will not, without AT&T'S prior written permission, use in advertising, publicity, packaging, labeling or otherwise any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by AT&T or any of its associated companies or used by AT&T or any of its associated companies to identify any of its products or services.

4.07 Neither execution of this agreement nor anything in it or in the LICENSED SOFTWARE shall be construed as an obligation upon AT&T or any of its associated companies to furnish any person, including LICENSEE, any assistance whatsoever, or any information or documentation other than the LICENSED SOFTWARE.

4.08 (a) LICENSEE agrees that it will hold the LICENSED SOFTWARE in confidence for AT&T and its associated companies. LICENSEE further agrees that it shall not make any disclosure of the LICENSED SOFTWARE (including methods and concepts used therein) to anyone, except students and faculty members of LICENSEE to whom such disclosure is necessary in the use for which rights are granted hereunder.

(b) LICENSEE shall appropriately notify students and faculty members who are permitted to use the LICENSED SOFTWARE, or to whom the LICENSED SOFTWARE is disclosed, of the provisions of this agreement and that any such disclosure is made in confidence and shall be kept in confidence by them.

(c) Notwithstanding the provisions of Section 4.08(a) LICENSEE may distribute its version of LICENSED SOFTWARE to other licensees of AT&T for UNIX System V, provided that LICENSEE first verifies the status of any such other licensee in acceptance with specific instructions issued by AT&T. Such instructions may be obtained on request from AT&T at the address specified in Section 4.13.

4.09 The obligations of LICENSEE and of its students and faculty members under Section 4.08 shall survive and continue after any termination of rights under this agreement. However, such obligations shall not extend to any information relating to the LICENSED SOFTWARE which is now available to the general public by acts not attributable to LICENSEE, its students or faculty members.

4.10 LICENSEE agrees that it will not use the LICENSED SOFTWARE except as authorized herein, that it will not make, have made, permit to be made or distribute any copies of LICENSED SOFTWARE except as necessary in connection with the rights granted hereunder, and that each such copy shall contain the same copyrights and [of proprietary natures of notices?] giving credit to a developer, which appear on or in the LICENSED SOFTWARE.

4.11 Neither this agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable.

4.12 Nothing in this agreement grants to LICENSEE the right to sell, lease or otherwise transfer or dispose of the LICENSED SOFTWARE in whole or in part.

4.13 Any payment, notice, request or other communication hereunder shall be deemed sufficiently given and any delivery hereunder deemed made when sent by certified mail addressed to LICENSEE at its office specified in this agreement or addressed to AT&T at P.O. Box 25000, Greensboro, North Carolina 27420 (to the attention of the Technology Licensing Organization), or at such changed address as the addressee shall have specified by written notice.

4.14 This agreement sets forth the entire agreement and understanding between the parties as to the subject matters hereof and merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to such subject matter other than as expressly provided herein, or in any prior existing written agreement between the parties, or as duly set forth on or subsequent to the effective date hereof in writing and signed by a proper and duly authorized representative of the party to be bound thereby.

4.15 [lines crossed out by ink and initialed KdL]


Schedule for
UNIX System V, VAX version
January 17, 1983

Note: The printed documentation and on-line documentation listed in sections (1) and (2) are general in nature and not intended to completely describe the COMPUTER PROGRAMS listed in sections (3) and (4); nor are all COMPUTER PROGRAMS described in such documentation necessarily in the LICENSED SOFTWARE.

The on-line documentation listed in section (2) and the COMPUTER PROGRAMS listed in sections (3) and (4) will be supplied on two 1200 ft. reels of nine track, 1600 [BPI?] magnetic tape.

1. PRINTED DOCUMENTATION
UNIX System Release Description -- System V
UNIX System Transition Aid -- System V
UNIX System User's Manual -- System V
UNIX System Administrator's Manual -- System V
UNIX Operating System Error Message Manual -- System V
UNIX System Administrator's Guide
UNIX System Operator's Guide
UNIX System User's Guide
UNIX System Document Processing Guide
UNIX System Graphics Guide
UNIX System Programming Guide
UNIX System Support Tools Guide

2. ON-LINE DOCUMENTATION

READ.ME
[illegible]

3. OBJECT SOFTWARE

3.1 Boot File
Tape Boot Loader
Initial Load Program

3.2 Cpio Program

Executable cpio program

3.3. Root File System (physical)

[illegible]

3.4 Root File System (cpio forma[t?])

[illegible]

3.5 /Usr File System

[illegible]

3.6 [RJE?] Software

[illegible]

3.7 Graphics Software

[illegible]

4. SOURCE SOFTWARE

[illegible]


  


AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text | 198 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections & etc
Authored by: Anonymous on Sunday, November 07 2004 @ 05:45 AM EST
you know you want to

[ Reply to This | # ]

PJ, what are you doing ???
Authored by: Anonymous on Sunday, November 07 2004 @ 05:55 AM EST
IBM's commercial License for internal business purposes is less restrictive then
a educational License for academic and educational purposes.

PJ, are you sure of being helpful to IBM's cause ?
This looks pretty devastating to me.

[ Reply to This | # ]

OT links
Authored by: MathFox on Sunday, November 07 2004 @ 06:25 AM EST
To make a link to a story use <A
HREF="http://www.example.com/">Link Text</A> and post in HTML
mode.

---
When people start to comment on the form of the message, it is a sign that they
have problems to accept the truth of the message.

[ Reply to This | # ]

AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text
Authored by: blacklight on Sunday, November 07 2004 @ 06:55 AM EST
The title of the agreement was a dead giveaway: "Educational Software
Agreement" - even I could catch it. Kudos to SCOG for not rising to the
bait and applying the restrictions of a non-comercial license agreement to the
commercial license: that's a great way to make sure that the commercial UNIX
licensees never saw that sucker punch coming - The poor things were properly
relying on the terms of the commercial AT&T contract. Tsk, tsk.

[ Reply to This | # ]

Official "The SCO Group" Positions
Authored by: mandalay on Sunday, November 07 2004 @ 07:07 AM EST
Did we stop doing this? If so, I missed the discussion. This is a real chance
for SCO to put their views since scoinfo.com is not certain at this point.

Main posts in this thread may only be made by senior managers or attorneys for
"The SCO Group". Main posts must use the name and position of the
poster at "The SCO Group". Main posters must post in their official
capacity at "The SCO Group".

Sub-posts will also be allowed from non-"The SCO Group" employees or
attorneys. Sub-posts from persons not connected with "The SCO Group"
must be very polite, address other posters and the main poster with the
honorific "Mr." or "Mrs." or "Ms.", as
appropriate, use correct surnames, not call names or suggest or imply unethical
or illegal conduct by "The SCO Group" or its employees or attorneys.
This thread requires an extremely high standard of conduct and even slightly
marginal posts will be deleted.

P.J. says you must be on your very best behavior.

If you want to comment on this thread, please post under "O/T"

[ Reply to This | # ]

Loved those PDP 11's.
Authored by: mandalay on Sunday, November 07 2004 @ 07:21 AM EST
Loved those PDP11's.

But PDP-8's was where I first learned the fundamentals. Still have the manual,
which says: "PDP-8 series computers have a basic core memory of 4096
twelve-bit words"

[ Reply to This | # ]

AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text
Authored by: blacklight on Sunday, November 07 2004 @ 07:23 AM EST
No new website for SCOG? So SCOG is going to be continuing to sponge off groklaw
the way it is sponging off the rest of the Open Source community. Sigh.

[ Reply to This | # ]

AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text
Authored by: coffee17 on Sunday, November 07 2004 @ 09:09 AM EST
As early as point 1.01 a) ii) we see that the license that IBM and Sequent had are vastly different from that. The point says:
... such results, enhancements and modifications (all to the extent that they do not include any portion of LICENSED SOFTWARE) are made available to anyone including AT&T and its associate companies without restrictions on use, copying or further distribution, notwithstanding any proprietary right (such as a copyright or patent right) that could be asserted by LICENSEE, its students or faculty members ...
Heck, I remember there was a Sequent declaration where they explicitly pointed out that AT&T/USL had to seperately license back portions of Dynix that AT&T/USL wanted to include in Unix.

All here who think that IBM would have paid for a contract where all their hard work just goes right back into a product that they'll have to continue to pay to license it's use raise their hand. Wow, and yet Microsoft thought it's Shared Source would take off. <sarcasm>Yes, please let us pay to be able to slave away and improve your product. Please! Please!</sarcasm>

[ Reply to This | # ]

The 1983 Educational License -
Authored by: DebianUser on Sunday, November 07 2004 @ 09:12 AM EST
This is such an amazing document. At this date it is hard to imagine how a
university could sign such an agreement, which is so strongly biased in favor of
ATT as the software vendor. The restrictions are so adverse to the interests of
faculty and staff that it is unclear what educational benefits could be expected
to flow from the arrangement.

I wonder also how the notorious legal case between ATT and BSD could have
ended with the "pox on both your houses" decree that seems to have
been the result. Could it have been the case that everyone involved concluded
the agreement on a "nudge, nudge, wink, wink ..." basis, and that came
out during the case?

And how do the agreement provisions square with the fact that years ago I
bought copies of the Unix system manuals off the shelf of the local bookstore?
Is that an effect of ATT later realizing that such draconian secrecy provisions
would stop them from ever being able to hire anyone knowledegable about unix
systems?

[ Reply to This | # ]

Irrelevant, misleading and deliberate.....What's up SCO lawyers?
Authored by: webster on Sunday, November 07 2004 @ 09:24 AM EST
"SCO is trying to wipe out the fact that AT&T had different licenses,
and that the IBM and Sequent licenses were very liberal toward those that wanted
to create their own code."

The SCO lawyers presented Wilson's deposition and then argued that it
contradicted the other deponents regarding the IBM license.

If they made a mistake and didn't realize there were more and different
licenses, they should say so, withdraw this deposition and amend their filings.
I hardly think they were mistaken.

Otherwise they have deliberately presented irrelevant and misleading material on
which to establish a contradiction to the witnesses and license that IBM enjoys
to this software. IBM should move to strike it for these reasons. Make SCO
lawyers do it, explain it, or maintain the "lie" to their further
detriment.

---
webster

[ Reply to This | # ]

AT&T-Regents of the U. of California -- The 1983 Educational License - PDF and text
Authored by: joef on Sunday, November 07 2004 @ 09:56 AM EST
As I recall what the DCC suit asked for, such as lists of CPUs, certification of
not sending anything to Afghanistan, etc., it looks like they were extracted
from the AT&T educational license. Does the commercial license include such
terms? Was TSG trying to enforce the wrong license in the demands it sent to
the Famous Fifteen Hundred?

[ Reply to This | # ]

UCB then was in voilation?!?
Authored by: brian on Sunday, November 07 2004 @ 10:26 AM EST

It has been argued here that UNIX has been taught in classes and written up in books. That violates section 4.08 as written below if done by UCB:

4.08 (a) LICENSEE agrees that it will hold the LICENSED SOFTWARE in confidence for AT&T and its associated companies. LICENSEE further agrees that it shall not make any disclosure of the LICENSED SOFTWARE (including methods and concepts used therein) to anyone, except students and faculty members of LICENSEE to whom such disclosure is necessary in the use for which rights are granted hereunder.

(b) LICENSEE shall appropriately notify students and faculty members who are permitted to use the LICENSED SOFTWARE, or to whom the LICENSED SOFTWARE is disclosed, of the provisions of this agreement and that any such disclosure is made in confidence and shall be kept in confidence by them.

(c) Notwithstanding the provisions of Section 4.08(a) LICENSEE may distribute its version of LICENSED SOFTWARE to other licensees of AT&T for UNIX System V, provided that LICENSEE first verifies the status of any such other licensee in acceptance with specific instructions issued by AT&T. Such instructions may be obtained on request from AT&T at the address specified in Section 4.13.

This section indicates to me that anything they used the code for in teaching also had to be kept "in confidence". The only thing that I see that negates this is the following:

4.09 The obligations of LICENSEE and of its students and faculty members under Section 4.08 shall survive and continue after any termination of rights under this agreement. However, such obligations shall not extend to any information relating to the LICENSED SOFTWARE which is now available to the general public by acts not attributable to LICENSEE, its students or faculty members.

So it boils down to just who released this "valuable code" (to use a Darlism) and if it was the University, can SCO go after them for anything? Of course, I could just be blowing smoke here but I would think if there was any case it would be against the University.

As an aside, does the length of time that nothing was done matter in the "confidential" clauses of contracts like this? In other words, if a company does nothing (due diligance) to stop leaks as they occur can they later try to use this clause as a trump card?

B.

---
#ifndef IANAL
#define IANAL
#endif

[ Reply to This | # ]

This is not the most recent license agreement
Authored by: sk43 on Sunday, November 07 2004 @ 12:30 PM EST
It is important to keep in mind that this 1983 software agreement was superceded by the 1985 software agreement , and that the Otis Wilson 1992 deposition covered both licenses. The 1985 agreement is interesting because it uses much of the same language as the second version of the commercial agreement (the version used for the DaimlerChrysler and oldSCO license agreements).

As an aside, in rereading SCO's Memerandum that referenced the 1983 agreement, I noticed that they incorrectly refer to "Berkeley Software Design" as the licensee, when in fact they should be referring to the University of California.

[ Reply to This | # ]

This is getting silly
Authored by: codswallop on Sunday, November 07 2004 @ 12:36 PM EST
There's a much higher nonsense level to the comments than is usual. I think the election must still have people stirred up. Moreover I'm not sure I agree with one of the essential points of the article.

1) The educational and commercial agreements are clearly different. The relevance of any testimony from the Berkeley case is for SCO to demonstrate.

2) The Berkeley case was settled. USL agreed that except for a few files the Berkeley code was clean. These files have been replace. This is over. It can't be relitigated.

3) The Berkeley settlement was sealed under the seal of the Regents, who have such power under the California constitution. Under the 11th amendment, they can't be sued in Federal court without their consent, since they're a branch of the government of California the California constitution , again). This is why nobody has managed to get the agreement unsealed. Some terms, however, had to be public to serve the ends of the agreement, so we know a lot of what's in it. There's nothing that can affect the IBM case negatively, particularly since IBM wasn't a party, and SCO may not have standing under it.

It should be noted that some of what the Berekeley rulings said about the limitations on the university's immunity is no longer correct. The Supreme Court struck down the law it was based on.

4)There's no question that the educational licenses were violated on a grand scale, since, among other things, the source code was published. However, AT&T condoned this to a large extent, and the confidentiality terms became unenforceable over time, to the extent they were ever enforceable. They rested on 2 legs - trade secrets and copyrights. Trade secrets have to be secret. By 1990 they weren't. Nor was there any evidence that the university was responsible for their disclosure. Copyrights under the old law required copyright notices on publication. AT&T neglected this. They also included enormous amounts of code that was copyrighted by others without attribution. This was all discussed in several rulings in the Berkeley case.

5) While the commercial and educational agreements may be different, they contain the same language in certain crucial respects. This language was at the core of the Berkeley case and is at the core of the IBM case.

2.01 AT&T 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 the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.

2.05 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.

7.06 (a) LICENSEE agrees that it shall hold all parts of the SOFTWARE PRODUCTS subject to this Agreement in confidence for AT&T. 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 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 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.

Thus the Berkeley depositions are relevant. The deponents are arguing that the same language meant different things in different agreements. This is certainly possible, but it's odd. In the one case the argument is that the methods and concepts phrase supports a mental contamination theory and in the other case it doesn't.

However, Otis Wilson also says in the earlier deposition that his view of the agreement relates to the whole agreement, and that he takes no position on the meaning of parts taken in isolation. If we take him at his word on this, there may well be no conflict in his view.

What is clear is that AT&T's monomania about only having one set of terms to administer, while "clarifying" them dozens of ways and apparently interpreting the same language differently, has caused an enormous amount of trouble.

6. None of the depositions have touched on the "internal use" clause. SCO harped on it initially and then mostly stopped. IBM seems to have ignored it. We still don't know what the parties thought it meant then or whether it's important to the case. I suspect SCO has lost faith in its efficacy.

---
IANAL This is not a legal opinion.
SCO is not a party to the APA.
Discovery relevance is to claims, not to sanity.

[ Reply to This | # ]

A fine sense of irony...
Authored by: J.F. on Sunday, November 07 2004 @ 01:03 PM EST

This flatly contradictory testimony, which IBM has had for months, obviously precludes any possibility that IBM’s new interpretation – its effort to rewrite history – could be undisputed as a matter of law.

It's rather ironic that TSG would put that in a legal document considering the efforts they have gone to to rewrite or erase history themselves. :)

[ Reply to This | # ]

OT: **Foot in Mouth- ON**Firefox? Bah Humbug**Foot in Mouth- OFF**
Authored by: SilverWave on Sunday, November 07 2004 @ 01:18 PM EST

Firefox? Bah Humbug, I say John Carroll for ZDNet

Firefox? Bah Humbug

""Experience providing support for Firefox As a certain square-jawed actor might have said had he been abducted by aliens and forced to write software, "the experience of one programmer doesn't amount to hill of beans in this crazy world." Even so, for a browser that touts its support for HTML standards, I was surprised to find that it had difficulty with standard HTML.

Check out this link under Internet Explorer, and then Firefox. I have created a Web page with a fixed position left, top and bottom sidebar that surrounds a scrollable area. All regions resize to completely fill the browser when its dimensions are changed.""

Looking at the Comments I think he got it wrong... can anyone confirm this?

"Name: Jason Barnabe
Location: Winnipeg
Occupation: Web developer
Comment: You misunderstand how CSS height works. The outer table's "height: 100%" means 100% of its containing block, which is the body. The body's height is determined by its contents; NOT the viewport height. Since the table is the only thing in the body, and the body is as high as the table already, setting the height to 100% on the table does nothing.
Also, Firefox does include document.all support."

Damning Comment from Ole Clausen

---
Linux used ideas from MINIX
MINIX|UNIX
UNIX|MULTICS
MULTICS|CTSS
CTSS|FMS
In science, all work is based on what came before it.
Andy Tanenbaum, 6June04

[ Reply to This | # ]

What I find interesting ...
Authored by: Jude on Sunday, November 07 2004 @ 07:20 PM EST
... is that this license is apparently far more restrictive than the one IBM
signed, yet AT&T was unable to use it to assert its intellectual property
claims against BSD Unix, which is clearly a descendant of AT&T code. BSD
Unix is now legally unencumbered by any Unix IP claims, and only a meagre
handful of files had to be removed to make it so.

The AT&T v BSD settlement was basically a loss for AT&T. The original
owner of Unix, armed with a stronger and more restrictive license, was unable to
prevail. I can't imagine why SCO would want to focus the court's attention on
this situation.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )