In SCO's reply to Novell's appellate brief, it tells the court:
Contrary to Novell's allegations, Santa Cruz "did not add any Novell copyright notices to," or "remove any copyright notices" from, the source code it acquired from Novell. (10666¶¶6-7.) In fact, it was Novell that changed the notices to add the Santa Cruz notice. (Id.) In addition, the date range of the Novell
notices from 1984-95 could not pertain to UnixWare source code, because Novell did not acquire the UNIX and UnixWare source code from AT&T until 1993. (10666¶8.) Instead, since Netware code was "contained in UnixWare," the notices pertained to Netware, which Novell had owned since "the mid-1980s." (00317;10666¶8.) This is so garbled, it's like a knot in your sneakers. One hardly knows where to begin. But it's worth it to try to unravel it, so here we go.
I'm going to present some new evidence that Novell did have copyrights prior to 1993, and that there was no NetWare that I can find in UnixWare until after 1993, but I will also republish an article Groklaw published on June 17, 2004, "Notice this Notice?". Yes. Five years ago. It presents a clear timeline that will help to lift this fog. SCO has more than once told journalists that they read Groklaw and use it as a reference, including the attorney who signed SCO's filing, so I can't figure out how they could write this. Have they really forgotten that Novell and USL set up Univel as a joint venture in 1991 and that the first version of UnixWare Novell produced appeared in 1992? Have they forgotten our 2004 article? I'll show you some Novell and Santa Cruz copyright notices to refresh everyone's memory from that article, but here's a 1995 Novell press release showing Novell still very much involved in Unix and UnixWare, after the APA, in working with Santa Cruz on UNIX products. To get some context, here's an October 3, 1993 New York Times article, New Crusader in Software's Holy War. Thank you, Google. It includes a timeline that supports the dates mentioned, but it also tells us that Novell had just announced that it would give away the UNIX trademark, likely to X/Open, that year. Ah! The sweet smell of truth.
In order to understand fully what SCO said, though, first we need to review quickly what Novell wrote in its appellate brief that SCO is responding to.
Novell said this about the copyrights in Unixware: A. Santa Cruz's APA Implementation
The APA was forward-looking. The goal was for Santa Cruz to develop and sell a "Merged Product" based on Novell's UnixWare that would provide a platform for Novell's NetWare. (06102(¶8);00288(Art.4.18);01425-26;01438.) After the APA closed, Santa Cruz devoted substantial resources "to upgrade UnixWare for high-performance computing on Intel processors." (05819(¶49);15541-42.)
Santa Cruz changed the copyright notices on UnixWare products to state:
Copyright 1996 The Santa Cruz Operation, Inc. All rights reserved.
Copyright 1984-1995 Novell, Inc. All rights reserved.
(10310.) SCO continues to use that form of copyright notice, even on recent products. (07408.) These notices reflect that (1) Novell owns the copyrights for
code developed 1984-1995, having bought those rights from AT&T and withheld them from the sale to Santa Cruz; and (2) Santa Cruz owns the copyrights on code added from 1996. See 2 Nimmer on Copyright §7.12[C][1](noting "practice of many publishers to include earlier copyright notices as well as a notice for the newly published derivative or collective work").
As I'll show you in our 2004 article, Novell actually continued to work on UnixWare in 1996 also. The press release, above, from 1995 confirms that Novell didn't retire after the APA. So, let's take a look at that article from the New York Times:
1 which gives us
their UNIX timeline:
1983: A.T.& T. introduces a new generation of Unix, called System V, and changes licensing terms that removes Bill Gates's Unix pricing advantage.
Hewlett-Packard introduces its Unix version, HP-UX.
1984: X/Open, a consortium is founded by a group of European computer companies to counter I.B.M.'s dominance.
1987: X/Open endorses a set of Unix standards known as Posix. A.T.& T. faces backlash over Unix licensing terms.
1988: A.T.& T. buys 20 percent of Sun Microsystems. I.B.M. enters Unix market with AIX software.RIGHT?? A broad industry coalition forms the Open Software Foundation in opposition to the A.T.& T.-Sun alliance and to promote an "open" approach to Unix that is not dependent on any one company's version. To counter the Open Software Foundation, A.T.& T. forms the Unix International consortium, and the Unix war is on.
1989: A.T.& T. and Sun introduce version of System V Unix that incorporates Berkeley and Xenix features.
1990: Products from Novell and other companies begin to appear that let Novell Netware PC networks interact with Unix systems.
A.T.& T. spins off Unix development into a separate subsidiary, Unix System Laboratories.
Open Software Foundation introduces its Unix standard, OSF/1, but only Digital Equipment fully embraces it.
1992: Novell and A.T.& T.'s Unix System Labs form joint venture, Univel. Novell introduces its own version of Unix, called Unixware. Novell agrees to buy Unix System Labs.
1993: June -- Novell completes acquisition of Unix Sy[s]tem Labs. Sept. -- Novell indicates intention to give Unix brand name and underlying software code to the X/Open consortium. (Source: Open Systems Today)
Did you notice the year UnixWare was introduced by Novell was 1992? So SCO got that year wrong. What? You say you don't trust SCO but the media can't be trusted either? Fair enough. So let's look at Novell's 10-K for the year ended October 31, 1993. They ought to know what really happened. Notice that Novell says it got involved in UNIX in 1991:
In April 1991, the Company invested $15.0 million in UNIX System
Laboratories, Inc. (USL), a subsidiary of AT&T that develops and licenses the
UNIX operating system and other standards-based software to customers worldwide.
In December 1991, the Company announced the formation of Univel, a joint venture
with USL, formed to accelerate the expanded use of the UNIX operating system in
the personal computer and network computing marketplace. Novell and USL
contributed cash and technology rights to Univel. Then in June 1993, the Company
acquired the remaining portion of USL by issuing approximately 11.1 million
shares of Novell common stock valued at $321.8 million in exchange for all of
the outstanding stock of USL not previously owned by Novell and assumed
additional liabilities of $9.4 million. The transaction was accounted for as a
purchase and, on this basis, resulted in a one-time write-off of $268.7 million
for purchased research and development in the third quarter of fiscal 1993....
UNIX SYSTEMS GROUP. USG provides a full suite of UNIX operating system and UNIX
connectivity products. Key products include:
Operating System Products. Novell's UnixWare operating system provides a
powerful application server and client for today's distributed computing
environments. The current product offerings are the UnixWare Application Server
1.1 and the UnixWare Personal Edition 1.1. UnixWare uses the network services
available from NetWare and the cross-platform development tools available from
AppWare to make applications available throughout the entire enterprise.
UnixWare is easy to use, enabling users to be productive right away. Its fully
graphical user interface gives users access to all the enterprise-wide
information and services available in the corporate computing environment with
simple point-and-click mouse functions. UnixWare also supports a variety of
international languages.
Optional products for the Application Server systems include: UnixWare
Server Merge for Windows, which provides UnixWare users with multiuser DOS
access and limited multiuser MS Windows access; UnixWare Online Data Manager
1.1, a UNIX System V, industry-standard, robust file system designed to maximize
system and data availability and improve I/O performance; and OracleWare
System-UnixWare Edition, a powerful applications data server platform which
integrates the UnixWare Application Server 1.1 operating system with Oracle 7
cooperative database server on a single CD-ROM disk.
Optional add-on products for UnixWare Personal Edition include UnixWare
NFS, which enables resource-sharing with other UNIX systems; UnixWare C2
Auditing, which records security-related events to help detect attempts to
breach security; and UnixWare Encryption Utilities, which provide support for
DES encryption and decryption.
Novell also supplies the UNIX operating system source code to other UNIX
system vendors. The latest version, UNIX System V Release 4.2 (SVR4.2), unifies
several earlier versions and offers greatly enhanced ease of use and ease of
administration features....
In April 1991, the Company purchased a minority equity position in UNIX
System Laboratories, Inc. (USL), a subsidiary of AT&T that develops and licenses
the UNIX operating system and other standards-based software to vendors
worldwide. This cash investment of $15.0 million was accounted for using the
cost method. Later, in December 1991, the Company announced the formation of
Univel, a 55% owned joint venture with USL, formed to accelerate the expanded
use of the UNIX operating system in the personal computer and network computing
marketplace. Novell and USL contributed cash and technology rights to Univel. In
June 1993, the Company acquired the remaining unowned portion of USL by issuing
approximately 11.1 million shares of Novell common stock valued at $321.8
million in exchange for all of the outstanding stock of USL not previously owned
by Novell and assumed additional liabilities of $9.4 million. The transaction
was accounted for as a purchase and, on this basis, a one-time write-off of
$268.7 million for purchased research and development was incurred.
Univel has been included in the consolidated financial statements of Novell
since December 1991 by virtue of Novell's 55% ownership interest. That ownership
interest is now 100% since the June 14, 1993 acquisition of USL, whereby both
USL and Univel are now included in the consolidated financial statements of
Novell.
So that is what really happened. Not only did Novell get all the copyrights from AT&T, it also was already developing code prior to 1993. Univel and Novell were developing something they called the Destiny desktop Unix operating system, based on the Unix System V release 4.2 kernel, and eventually it became UnixWare 1.0 in 1992. There was a personal edition, limited to just two users. NetWare and UnixWare came later, in 1993, according to Unix.org:
In early 1993, AT&T sold its UNIX System Laboratories to Novell which was looking for a heavyweight operating system to link to its NetWare product range. At the same time, the company recognized that vesting control of the definition (specification) and trademark with a vendor-neutral organization would further facilitate the value of UNIX as a foundation of open systems. So the constituent parts of the UNIX System, previously owned by a single entity are now quite separate.
So, not only was Novell the owner of UnixWare copyrights prior to 1993, it also had a UnixWare product prior to that year that apparently had no NetWare code in it.
What about 1996 onward? Let's take another look at Groklaw's 2004 article once again, and you may wish to have all the relevant documents handy, so here is where you can find all of them:
And with that, once again, Notice this Notice?:
*******************************
Notice this Notice?
~by Dr Stupid
Executive Summary
The clearest and least biased indication of the nature of the 1995
agreement between Novell and The Santa Cruz Operation (hereafter
"oldSCO") comes from the contemporaneous statements and, more crucially,
actions of both parties. oldSCO's handling of the UnixWare source code
in the years following the deal seem to me most consistent with those of a company
that had obtained the right to freely derive from and sell products
based on the code, but inconsistent with those of a company that had
been granted, or believed they owned, the copyrights on that code. There
is also some evidence that indicates to me that the notices of copyright ownership became
gradually obfuscated over time, either by accident or design.
A 1996 Clarification of What SCO Purchased from Novell
Here is a 1996
UNIXWARE/OPENSERVER WATCH, which described itself like this:
"UNIXWARE/OPENSERVER WATCH (UOW)
is produced by UnixWare Technology Group (UTG) Inc., a not-for-profit
global trade association with one purpose: to provide a forum in which
member companies promote, influence and advance the development of
UnixWare and allied technologies."
Notice this apology from the editor for an unclear earlier UOW:
"AN APOLOGY, AN EXPLANATION AND A
COMMITMENT First, an apology. In UOW #10, there were several
incorrect uses of the UNIX trade mark, for which your UOW Editor takes
full responsibility. Also, some of the
writing might have confused some readers into thinking that SCO had
taken the reins of the entire UNIX System business, and not just the
UNIX System licensing and UnixWare businesses SCO purchased from Novell.
Again, apologies from your editor." [emphasis added][Note update at end of article]
A History Lesson
In 1995, Novell and oldSCO announced
a deal whereby oldSCO would take over the Unixware business from
Novell. Novell may have got rid of the UnixWare business, but in 1995 it hardly
looked as if Novell was washing its hands of UNIX per se:
"Hewlett Packard, Novell and SCO
jointly announced a business relationship to deliver a high-volume UNIX
operating system with NetWare and enterprise services. . . .
"Novell will work with HP to produce a
high-performance implementation of its NetWare Directory Services (NDS)
and File/Print Services for HP-UX, and integrate NDS with DCE. . . .
"SCO will utilize Novell's Provo, Syndey and Dusseldorf UnixWare
support staff through Q2'96. SCO will fully support UnixWare
products with its own staff beginning in Q2'96."
Novell and oldSCO had
more than one link:
"Novell will receive approximately 6.1
million shares of SCO common stock, resulting in an ownership position
of approximately 17% (post transaction) of the outstanding SCO
capital stock. . . .
"In order to meet customer support
needs and protect development requirements, SCO intends to hire a number
of Novell employees. "
At the time of the deal, Novell was already working on a new version of
the product, which would be officially called UnixWare 2.1.
Although the deal was signed in 1995, the actual handover of the
business from Novell to oldSCO would not happen until early 1996. In the
meantime Novell
kept working on Unixware, and in December of 1995, UnixWare 2.1 was
completed.
"[UW2.1 was] 100% [Novell]. The
ctime dates on the SCO UnixWare 2.1 CD-ROM (the commercial version) are
Dec 12 and Dec 13 1995. The business was transitioned to SCO on 31
Jan 1996."
In early 1996, Novell handed over the UnixWare business to SCO, including the new product.
Unixware 2.1 was released to the public as a SCO product, though no one
at oldSCO had actually written any of it.
While oldSCO was getting familiar with their new product, they hired a
number of Novell employees to maintain it in the meantime - remember:
"In order to meet customer support
needs and protect development requirements, SCO intends to hire a number
of Novell employees. "
Late in 1996, SCO released an updated version of UnixWare - UnixWare
2.1.1. This was over a year after the original deal was announced, and 9
months after the handover of the business.
One would suppose, from the above history, that Novell's contributions
to UnixWare had stopped in December of 1995. But this is not so; and we
can see that because we can see one of the files that make up UnixWare
2.1.1.
A Novell employee, as part of an internet discussion in 1997, revealed the copyright header on
one of the Unixware 2.1.1 files - an important "header file" called
"stdio.h"
/*Copyright (c) 1990, 1991, 1992,
1993, 1994, 1995, 1996 Novell, Inc. All Rights Reserved.*/
/*Copyright (c) 1988, 1990 Novell, Inc. All Rights Reserved.*/
/* All Rights Reserved */
/*THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF Novell Inc.*/
/*The copyright notice above does not evidence any */
/*actual or intended publication of such source code.*/
#ifndef _STDIO_H
#define _STDIO_H
#ident"@(#)/usr/include/stdio.h.sl 1.1 u211 09/27/96 52255 SCO"
The "u211" shows this file is from Unixware 2.1.1. The 9/27/96 is the
date the file was last changed - months after Novell had handed over to
oldSCO. And the copyright notice includes a (c)1996 Novell - no SCO at
all.
So, even months after the handover from Novell to SCO of the UnixWare
business, Novell were still making improvements to UnixWare and oldSCO
was acknowledging them as holding the copyrights. The Novell employees
helping oldSCO with support in early 1996 could not have been "working
for hire" for oldSCO as otherwise their contributions would have been
(c) SCO, irrespective of the APA amendments. Novell and oldSCO were
still acting as if Novell owned the copyrights to the SysV core
materials, and oldSCO was the "publisher" to the wider world.
These files were freely available from SCO's ftp server at
the time, via anonymous download, and they can still
be found at various mirrors for SCO customers.
The 2.1.1 update files confirm the above USENET posting and also
contain other files with a (c) 1996 Novell copyright, e.g.:
/* Copyright
(c) 1990, 1991, 1992, 1993, 1994, 1995, 1996 Novell, Inc. All Rights
Reserved. */
/* Copyright (c) 1984, 1985, 1986, 1987, 1988,
1989, 1990 Novell, Inc. All Rights Reserved. */
/* All Rights Reserved
*/
/* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE
OF Novell Inc. */
/* The copyright notice above does not evidence
any */
/* actual or intended publication of such
source code. */
#ifndef _SVC_ERRNO_H /* wrapper symbol for
kernel use */
#define _SVC_ERRNO_H /* subject to change
without notice */
#ident "@(#)/usr/include/sys/errno.h.sl 1.1
u211 09/27/96 44690 SCO"
#ident "$Header: $"
By the time of the next update, UnixWare 2.1.2, oldSCO had (according
to the plan outlined above) taken over development of the product. Yet
the 2.1.2 update (from 1997) still includes non-NetWare material with
(c) Novell on it.
The 2.1.3 update is from 1998 and is much larger. It includes many
updates to man pages (still with Novell copyrights.) The file
/usr/sbin/pppconf is updated to vintage 1998 - still (c)
Novell; and /usr/include/sys/xti.h is also still (c) Novell.
In fact, there are only 2 source files in this update which have a (c) Santa
Cruz copyright - a small shell script and this:
/*
* Copyright (C) 1997 The Santa Cruz Operation,
Inc.
* All Rights Reserved.
* The information in this file is provided for
the exclusive use of
* the licensees of The Santa Cruz Operation,
Inc.
* The information in this file is provided "AS
IS" without warranty.
*/
/*
* Copyright (C) 1995-1997 Intel Corporation.
* All Rights Reserved.
*
* This update binary code is distributed for
the sole purpose of
* being loading into Intel P6 Family
microprocessors in systems
* upon which your operating system is installed
or executed.
*
* You may not make any derivative work of, nor
perform any reverse
* engineering upon, the update binary code, nor
facilitate the
* update to be loaded into any non-Intel
processor.
*/
/*
* Tunable INTEL_CPUREV is autotuned by idbuild,
to minimize the
* size of the Pentium Pro & Pentium II
microcode updates table.
*/
#include "config.h"
#ifndef INTEL_CPUREV
/* tunable is missing so */
#define INTEL_CPUREV 0x6000000
/* link all p6_updates */
#endif
#define CPU (INTEL_CPUREV >>
16) /* family, model, step */
#define REV (INTEL_CPUREV &
0xffff) /* microcode revision */
unsigned long p6_updates[] =
{
#if (REV
0x00000001, 0x00000b27,
0x12181996, 0x00000611,
0x05793e46, 0x00000001,
0x00000000, 0x00000000,
0x00000000, 0x00000000,
0x00000000, 0x00000000,
[snip lots of hex data]
/* record built INTEL_CPUREV in terminating line of table */
0x00000000, INTEL_CPUREV,
0x00000000, 0x00000000
};
I'm not sure what that (c) SCO is for, since they seem to have simply
taken the Intel file and just put their own header on it.
Here is what is supposed to be in a copyright notice, according to the US Copyright Office's Copyright Basics page:
"Form of Notice for Visually Perceptible Copies
"The notice for visually perceptible copies should contain all the following
three elements:
1. The symbol © (the letter C in a circle), or the word "Copyright," or the
abbreviation "Copr."; and
2. The year of first publication of the work....
3. The name of the *owner of copyright* in the work, or an abbreviation by
which the name can be recognized, or a generally known alternative
designation of the owner." [emphasis added]
So, the names mentioned should be the copyright owners, not a history of
past authors. Novell wasn't writing UNIX in 1984, AT&T was. But because
Novell bought the copyright from AT&T/USL, they got to say "(c) 1984 Novell."
It follows logically that if oldSCO bought the copyrights from Novell, the
notice should read "(c) 1984-1997 The Santa Cruz Operation" and not mention
Novell at all.
What does this mean?
- Several months after the deal that newSCO now claims gave them
the copyrights, oldSCO was happily selling a product that showed Novell
as owning copyrights.
- Novell was still contributing code to the product even
after oldSCO supposedly "took it over".
- In 1998, years after the APA and years after Amendment 2, oldSCO
was still leaving (c) Novell notices untouched in its updates to the
UnixWare system - including updates to the manuals of which newSCO
explicitly claimed the copyright in its complaint against AutoZone.
You ain't seen nothing yet
As mentioned, the 2.1.3 update does not add SCO copyrights to system
files: in fact it contains several updated man pages and some headers
that still say (c) Novell. However, it does alter some system header files.
If one compares the errno.h file from UW2.1.1 and UW2.1.3
with a "diff" program, one can see that none of the code has changed. The
only real change is that the
copyright notice has been removed. That's right - (c) Novell is
not replaced with (c) SCO, but instead the copyright header is simply
stripped.
The same is done to various other system header files in the 2.1.3
update. The reader is invited to draw his or her own conclusions.
The step from 2 to 7
In 1998 oldSCO released UnixWare 7 - the merger of OpenServer 5
and UnixWare 2 (The "merged product" referred to in the APA.) The
following makes use of information obtained from a legitimate UnixWare
7.1.1 system and its associated media kit.
Looking at the actual files on a UnixWare 7 system, we find that the errno.h
file contains a simple (c) 1998 The Santa Cruz Operation notice. Of
course this copyright notice is not complete since errno.h
was not wholly authored in 1998, but the more significant point is the
overall history of this file while it was in oldSCO's hands:
- UnixWare 2.1.1 - (c) Novell
- UnixWare 2.1.2 - (c) Novell
- UnixWare 2.1.3 - No copyright notice
- UnixWare 7 - (c) oldSCO
CD1 - the installation CD - boots to a miniature UnixWare system to
conduct the install. The data for the installation is held in several
folders on the CDROM, each of which is like a partly unpacked "pkg"
format archive. I say partially, because although the individual files
are present in a series of directory structures topped with "/root.#"
(where # is a number) rather than held in a cpio-style archive, most are
compressed and must be unpacked with the traditional UNIX "uncompress"
before reading.
From the Horse's Mouth
There is a package called "BASE", which as you might guess from the
name contains (inter alia) the
UW kernel:
PSTAMP=UW7 04/07/98
ARCH=IA32
PKG=base
NAME=Base System
DESC=Base Operating System, commands and utilities.
CATEGORY=system
VENDOR=SCO
CLASSES=sysdir kernel sysutil inst vtool intrfc config term modem
sysinst need upnover none
ORDER=sysdir kernel sysutil inst vtool intrfc config term modem
sysinst need upnover none
MAXINST=1
[snip]
RELEASE=5
VERSION=7.0.0u
PRODUCTNAME=UW
PREDEPEND=base
COMPRESSED=true
[Aside: the installation program actually builds the kernel (from a
collection binary modules) during the installation.]
Here is the copyright info for this package, taken from the "copyright"
file which it contains:
(C) Copyright 1996-1998 The Santa
Cruz Operation, Inc. All rights reserved.
Copyright 1984-1995 Novell, Inc. All Rights Reserved.
Portions Copyright (c) 1989 INTERACTIVE Systems Corporation.
Portions Copyright (c) 1990, 1991, 1992 INTEL Corporation.
Portions Copyright (c) 1993 Compaq Computer Corp.
All Rights Reserved.
In fact there are 96 "copyright" files mentioning Novell on CD1 alone,
most of the format:
(C) Copyright 1996-xxx The Santa
Cruz Operation, Inc. All rights reserved.
Copyright 1984-1995 Novell, Inc. All Rights Reserved.
These "copyright" files are not mere leftovers inherited from Novell,
since at the time of the APA they would have contained only the Novell
copyright notice. Therefore oldSCO had (in 1996-1997) gone through each
of these files and added their copyright notice dating from 1996, quite deliberately leaving the Novell
notice intact.
A Cast of Thousands
Now, the install program places a "copyrights.list" file on the hard
disk, which reads (in part):
Copyright (c) 1976-1998 The Santa
Cruz Operation, Inc. All Rights Reserved.
...snip...
Copyright (c) 1976-1992 AT & T
Copyright (c) 1987-1995 Computer Associates International, Inc.
...snip...
Copyright (c) 1988-1997 Edison Design Group, Inc.
Copyright (c) 1983-1997 Eric P. Allman
...snip...
Copyright (c) 1993-1995 Hewlett-Packard Company
Copyright (c) 1995 Hitachi, Ltd.
Copyright (c) 1990-1998 Intel Corporation
Copyright (c) 1992-1998 International Business Machines
Corporation
Copyright (c) 1984-1998 Massachusetts Institute of Technology
...snip...
Copyright (c) 1987-1988 Microsoft Corporation
...snip...
Copyright (c) 1993-1998 Novell, Inc.
...snip...
Copyright (c) 1982-1995 The Regents of the University of
California
Copyright (c) 1993-1995 Sun Microsystems, Inc.
Copyright (c) 1989-1997 The Open Group (formerly OSF)
...snip...
Copyright (c) 1992-1998 Compaq Computer Corporation
Copyright (c) 1994-1998 Digital Equipment Corporation
...snip...
All Rights Reserved.
A certain inconsistency is apparent with the "copyright" data on the
packages themselves; but note the following:
Copyright (c) 1976-1998 The Santa Cruz
Operation
Copyright (c) 1976-1992 AT & T
Copyright (c) 1993-1998 Novell, Inc.
The AT&T and Novell ranges together span the years of oldSCO's
declaration. Aside: how did AT&T still hold a copyright on part of
UnixWare?
Although oldSCO appears to be claiming a copyright going back to 1976,
there's only one package with a COPYRIGHT file that mentions 1976.
Strangely, it's for the CDE login manager, which I believe didn't exist
back in 1976.
The notice starts (emphasis mine):
UnixWare 7
Copyright (c) 1976-1998 The Santa Cruz Operation, Inc. and its suppliers.
All Rights Reserved.
The "and its suppliers" effectively makes the copyright notice very
vague about who owns what. It effectively forces one to look at all the
other notices - which as we have seen, include several references to
Novell. Overall, oldSCO's stance looks like an assertion of collective copyright - that oldSCO
had the copyright on the specific compilation and integration of
programs and code that made up UnixWare, and could thus pursue those who
copied UnixWare as a whole, but had little copyright interest in any
given program or code. [The situation is similar to that of the
publisher of an anthology of poetry.]
As mentioned previously, the installation program actually builds the
kernel (from a collection of binary modules) during the installation.
The UnixWare kernel is also rebuilt from those modules as part of
certain system configuration procedures. The "svc" module has within it:
UnixWare %v for the Intel386(tm) Family
Copyright 1984-1995 Novell, Inc. All Rights Reserved
U.S. Pat. No. 5,349,642
None of the other modules have a Santa Cruz copyright that I've spotted yet.
What is the "svc" kernel module for? According to this
USENET post, John Wiegley tells us that svc is the "System V
configuration" module.
That boot-up message ("UnixWare %v for the Intel386(tm) Family") is the
built-in default - it can be overridden by a file called "bootmsgs".
Sure enough, oldSCO provided one - here is the relevant extract:
BOOTMSG1=Starting UnixWare...
TITLE=UnixWare 7, based on UNIX System V Release 5 from SCO
COPYRIGHT=Copyright (c) 1976-1998 The Santa Cruz Operation, Inc. and
its suppliers. All Rights Reserved.
And Still Footprints in the Code
Along with the operating system binaries, the installation also
includes system header files. Here is a particularly interesting one:
/usr/include/machlock.h - it appears to deal with atomic
locks, a low-level system operation.
/*
* Copyright (c) 1999 The Santa Cruz Operation, Inc.. All
Rights Reserved.
*
* THIS IS
UNPUBLISHED PROPRIETARY SOURCE CODE OF THE
*
SANTA CRUZ OPERATION INC.
*
* The copyright notice above does not evidence
any actual or intended
* publication of such source code.
*/
/* Copyright (c) 1990, 1991, 1992,
1993, 1994, 1995 Novell, Inc. All Rights Reserved.*/
/* Copyright (c) 1988, 1990 Novell,
Inc. All Rights Reserved. */
/* All Rights
Reserved */
/* THIS IS UNPUBLISHED PROPRIETARY
SOURCE CODE OF Novell Inc. */
/* The copyright notice above does
not evidence any */
/* actual or intended publication
of such source code. */
Let's compare that to another UnixWare header file that Novell definitely retained the copyrights
to (by the admission of newSCO's own lawyers) - the NetWare stuff:
/*
* Copyright (c) 1998 The Santa Cruz Operation, Inc.. All
Rights Reserved.
*
* THIS IS
UNPUBLISHED PROPRIETARY SOURCE CODE OF THE
*
SANTA CRUZ OPERATION INC.
*
* The copyright notice above does not evidence
any actual or intended
* publication of such source code.
*/
/* $Novell-NWU: $Header:
/proj6/ncps/nwu_top/nuc/include/nw/nwerror.h,v 1.3 1996
/* Copyright (c) 1990, 1991, 1992,
1993, 1994, 1995 Novell, Inc. All Rights
/* Copyright (c) 1993 Novell, Inc.
All Rights Reserved. */
/* All Rights
Reserved */
/* THIS IS UNPUBLISHED PROPRIETARY
SOURCE CODE OF Novell Inc. */
/* The copyright notice above does
not evidence any */
/* actual or intended publication
of such source code. */
Not enormously different is it? Would you conclude, looking at these
two files, that Novell owned the copyright on the latter and The Santa
Cruz Operation on the former? Or would you conclude that Novell owned
them both and oldSCO was merely asserting its collective copyright on
UnixWare as a whole?
A Scrivener's Error?
newSCO has dismissed the original APA's explicit exclusion of
copyrights as a "scrivener's error" - that is to say, that it was
everyone's intention in 1995 that oldSCO receive the copyrights and the
agreement was merely incorrectly drafted. However, on its face the
UnixWare 2.1.1 update shows me that in 1996
(a) Novell was more involved in UnixWare at the time than newSCO has
subsequently represented;
(b) oldSCO was not acting like a company that had bought the
copyrights;
(c) Novell was not acting like a company that had sold them.
This is not the only evidence, moreover. In particular, if the
exclusion of copyrights was really just a typo, then one would have
expected it to be corrected in Amendment 1. Instead,
Amendment 1 actually adds the
language
"In addition, Buyer shall not, and shall have no right to, enter
into new SVRX Licenses" [emph mine]
There is a second, more subtle variant on the "error" scenario that
might be advanced - namely, an analogue of the oldSCO/Caldera deal in
which oldSCO originally retained the OpenServer rights and later sold
them to Caldera. In this scenario the copyrights were not intended to be
transferred, but later on oldSCO and Novell agreed to transfer them for
some reason and created Amendment 2 to that effect.
This scenario, though, again fails to gel with the actions of the
companies at the time. Surely such a deal would have merited a press
release, but there was no such release that I could find. The UW2.1.2 and 2.1.3 updates do
not place SCO copyright notices on the core UNIX code; and UW7 has the
tell-tale copyright notices which still list Novell as the copyright
holder of contributions prior to 1996.
As an aside, Amendment 1 also says:
"1.2 (d) Asset Transfer and Transfer
Taxes. Notwithstanding any other provision of this Agreement, the Assets shall remain the property of
Seller until expeditiously delivered to Buyer in the manner and
at the locations prescribed as follows in this Section 1.2(d), or as
subsequently agreed in writing."
and then makes provision for delivery of physical source code but no
specific arrangments for transfer of copyrights. This does strongly
indicate that any copyright transfers were to be enacted by separate
writings from the APA itself.
What, then, was the purpose and motivation behind the amendment?
The trademark patch
Firstly, the original APA gave as excluded assets:
"All copyrights and trademarks, except
for the trademarks UNIX and UnixWare."
This apparently gave oldSCO the UNIX trademark. Except this was
obviously wrong, since the UNIX trademark had been given to the Open
Group. So this clause had to
change. Also, oldSCO bought a business that sold many products - the
UnixWare trademark alone might not cover them all. Clearly, Novell had
to sell oldSCO the trademarks it needed to conduct the business.
That would appear to be the prime mover behind this part of the
Amendment. As we see elsewhere, there is nothing in oldSCO's behaviour
around this time to indicate that it thought it
owned the UNIX copyrights (and thus would want the APA "brought into
line")
However, given that oldSCO was an existing UNIX licensee of an older
version (not SVR4), it wasn't clear whether they could rely on that
license alone to carry on the business of selling UnixWare. There might
be the odd bits of UnixWare that couldn't be counted under the SysV
license. All the above combine to yield the final catchall language:
"All copyrights and trademarks, except
for the copyrights and trademarks owned by Novell as of the date of the
Agreement required for SCO to exercise its rights with respect to the
acquisition of UNIX and UnixWare technologies."
What are those rights? To refer blindly to the start of the APA is
inadequate since it introduces a hopeless circularity:
SCO rights = All rights - Patents - (Copyrights - (Copyrights needed
for SCO rights, which are.... oops))
APA Amendment 1 gives a hint, though, when it says
"..as may be incidentally involved
through its rights to sell and license UnixWare software or the Merged
Product.."
How did oldSCO describe
the transaction?
"In fiscal year 1996, SCO acquired the
UnixWare(R) and UNIX System V Release 4 source-license business from Novell,
Inc."
[Another point. oldSCO were to be given those copyrights required to
exercise their rights. UnixWare contained NetWare code, yet oldSCO did
not require ownership of the NetWare copyrights to develop and sell
UnixWare. Why, therefore, should they require ownership
of the ancient UNIX and System V copyrights?]
The Real Point of the Amendment?
Secondly, there is more to Amendment 2 than this oft-discussed clause.
The bulk of the amendment creates arrangements for royalty buyouts of
System V: arrangements whereby both oldSCO's and Novell's permission is
required. Why might this have come to the fore? Presumably because in
the two previous years there had
been two royalty buyouts associated with System V:
"The increase from fiscal 1995 to
fiscal 1996 was attributable to a one-time
$19 million paid-up royalty recognized in the sale of UNIX
technology to SCO in fiscal 1996. The decrease in fiscal 1995 compared
to fiscal 1994 was due to a one-time
fully paid license for UNIX technology sold to Sun Microsystems
for $81 million in fiscal 1994."
It is worth pointing out that this $19m royalty was not mentioned as
part of the original deal between Novell and oldSCO. It also strikes me
as unlikely that any payment which bought a copyright outright would
ever be described as a royalty payment. A "one-time $19 million paid-up royalty"
sounds more like a "right[] to sell
and license".
Amendment 2 states that
"Novell may execute a [System V
royalty] buy-out ... without any approval or involvement of SCO, ... if:
(i) SCO ceases to actively and aggressively market SCO's UNIX
platforms.."
That seems to say that Novell could seek to generate revenue from royalty
buy-outs if oldSCO lost interest in UNIX. This reads not as a right
granted to Novell, but as a right held but restrained as long as oldSCO
"actively and aggressively" marketed UNIX.
So, the infamous clause in Amendment 2 was not its raison d'etre, it seems.
Rather, Amendment 2 could have been drafted primarily to formalize arrangements for
subsequent royalty buyouts, like IBM's "Amendment X", and the
opportunity was taken to fudge some incorrect wording at the same time.
Conclusion
Based on the above publicly available evidence, which -- being
contemporaneous -- is the least likely to be coloured by today's agendas
of the parties involved, in my opinion, the deal between oldSCO and Novell was most
likely as follows:
- Novell sold the physical assets, reseller channel and information
related to the UnixWare business to oldSCO and was given oldSCO stock in
return. This was part of an overall strategy whereby Novell, HP and
oldSCO would co-operate on driving forward the Unix platform.
- oldSCO were given every right they needed to conduct the business
-- the trademarks, and the right to develop and license the UnixWare code
as they saw fit.
- Novell retained ownership of the copyrights and patents,
both so as to retain a revenue stream from royalties and for its
internal needs.
- Because Novell retained such broad rights to UNIX, oldSCO needed
assurances that Novell would not undermine their business. Thus, Novell
was contractually bound not to create new System V licensees, not to try
to "sell" System V in general, and so forth.
- In return, Novell needed assurances that oldSCO would not
undermine the System V royalty stream by allowing licensees to buyout
their System V licenses, or by harassing the licensees. Thus, Novell
retained far-reaching powers of waiver with respect to the old licenses,
and it was agreed that royalty buyouts needed both parties' approval.
- oldSCO negotiated a royalty buyout in respect of its existing
System V licenses, so that it could create the merged product (UnixWare
7) and sell it without paying any royalties to Novell.
UPDATE: An enterprising Groklaw reader, Sean Lynch, used his research skills to contact Michael Dortch,
mentioned in the article, who has some remembrances to add to the picture. He has given us permission to publish the email, which confirms that the article is "essentially accurate and correct" and that to the best of his knowledge, "SCO only purchased from Novell UNIX
System licensing rights and the UnixWare business":
Thanks for your e-mail. I must say at the outset that I was initially
surprised to see a quote from "UnixWare/OpenServer Watch" in a current
e-mail. It seems that some artifacts never die online.
In any event, yes, I am the Michael Dortch who was the editor of that
newsletter at the time the piece containing the quote referred to in the
Groklaw article was published. I created that newsletter while at
UnixWare Technology Group (UTG), a trade association of UnixWare (and,
later, as I recall, OpenServer) resellers and other supporters. I was
"chief evangelist" for UTG, recruited by its founding president and CEO,
Lawrence Lytel, in 1994. (I am now a principal business analyst at
Robert Frances Group (RFG), providers of advice and counsel to IT
executives and their teams and colleagues. In this role, my colleagues
and I have also been following closely and striving to untangle the
details of the "Novell-SCO spat," as the Groklaw article so charmingly
describes it.)
Yes, UTG and I were contacted by Grant Bird, then Director of Branding
at X/Open, predecessor to today's Open Group. As it says in the issue of
"UnixWare/OpenServer Watch" from which the Groklaw article extracted my
quote, X/Open produced and "owned" the then-"official" guide to proper
use of terms such as "UNIX System," and I had misused some of those
terms in a previous issue of the newsletter. It was my discussions via
e-mail and telephone with Grant that led to the apology and commitment
from which the Groklaw article quote was extracted.
As I recall, my discussions with Grant focused solely on proper use of
terms, not ownership of the intellectual property described by those
terms. However, I do have some thoughts and recollections on that
subject as well.
UTG was formed to help Novell promote UnixWare, and was initially
populated largely by Novell UnixWare partners such as Unisys. As I
recall, Novell was the primary initial financial supporter of UTG,
apparently intending to encourage collaborative marketing among UnixWare
partners as well as interoperability among their various respective
UnixWare and UNIX System offerings.
HP was also prominently involved; representatives from HP and what you
refer to as "oldSCO" made a joint presentation to a UTG member meeting
held on March 27, 1996 in Japan, for example. At that event, oldSCO said
it had hired more than 200 former employees of Novell and "USL," which
was the old AT&T UNIX System Laboratories from which, as I recall,
Novell bought the rights to UNIX System V. In any event, oldSCO said the
"Next Generation OS" being developed would be based on "SCO's and HP's 3
products: UnixWare, OpenServer, and HP-UX." (FYI, I parted company with
UTG in July 1996, and the organization itself was dissolved shortly
thereafter. As I recall, there was fairly substantial doubt that HP was
really more interested in collaborating on a "Next Generation OS" than
in promoting HP-UX as that solution. There was also doubt among UTG's
former members that SCO could really lead a charge toward such an OS
without full support from HP and/or Novell.)
In any event, based on my recollection of events at the times mentioned
in the articles to which you referred in your earlier e-mail, I believe
the Groklaw article's interpretation of both my quote and the events at
the time is essentially accurate and correct. To the best of my
knowledge, as it says in my quote, SCO only purchased from Novell UNIX
System licensing rights and the UnixWare business. Also, Novell did in
fact continue to work on and champion UnixWare for some time after that
purchase SCO was made final.
The vast majority of RFG clients are IT executives at large enterprises.
Many of these use or are seriously considering using Linux and other
technologies potentially affected by the labyrinthine legal machinations
of "newSCO." As RFG said in a March 2004 analysis, "Is SCO At the
Tipping Point?," "SCO's case continues to disintegrate, and proving its
claims against IBM will be extremely difficult. Until and unless SCO is
able to do so, RFG does not see value in paying SCO protection money
just to use Linux. ...IT executives should not fall prey to SCO's scare
tactics, and should instead continue to focus on the ultimate values and
risks involved in each platform decision made as part of an application
deployment."
I hope this is helpful, and appreciate your contacting me. Please feel
free to quote from the above text in whole or in part, as long as any
such quotes are made verbatim and include appropriate attribution. Also,
feel free to contact me again with any other questions or comments you
may have on this still-fascinating topic.
Cheers,
Michael Dortch
Principal Business Analyst
IT Infrastructure Management Practice Leader
Editorial Director
Robert Frances Group
"Business Advisors to IT Executives"
1 From the New York Times article, about the trademark:
IT was less than four months ago that Novell Inc. acquired Unix System Laboratories from A.T.& T. in a stock swap valued at about $320 million. Within the next few weeks, Novell intends to give the Unix trademark away. Bizarre? Not in the context of Unix, the software system with a troubled past....
Still, Novell, which acquired the Unix trademark when it bought Unix System Laboratories, hopes to overcome the industry fragmentation. Novell means to give away the Unix brand name and responsibility for maintaining the Unix specifications to an independent organization, most likely the X/Open Company, a London-based consortium of 14 hardware and software companies that was founded in 1984 to promote standardized approaches to Unix.
What Novell is offering is the ability for any company to call a product Unix if it meets the basic specifications maintained by X/Open. The hope is that "Unix" could become a stamp of credibility, just as the "Intel Inside" stamp is now being used in the personal computer business. Among the Unix specifications is a common set of application programming interfaces -- the links between Unix and individual application programs -- meaning a program written for one version of Unix should more easily be able to run on others.
But Novell, which also intends to continue marketing its own flavor of Unix, called Unixware, has not had an easy time selling its vision of unity to the industry. "Discussions of the plan are problematic at best," said Mike Azzara, editor of Open Systems Today, a trade publication. "Novell is also now at the vortex of some intensely competitive market share battles involving many of the same companies that it hopes to cooperate with on the trademark issue."
NOVELL had planned to announce its Unix giveaway at an industry trade show late last month, but it ran into difficulty getting other major Unix vendors to agree on the details. The company scuttled the announcement at the last minute. Other vendors, such as the International Business Machines Corporation, the Hewlett-Packard Company, Sun Microsystems Inc. and the Santa Cruz Operation, said they were concerned that Novell was attempting to make its Unixware the de facto standard.
So that's why they decided to transfer the trademark, to quell the UNIX natives, who were unhappy at Novell's purchase.
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