Here is the Silicon Graphics-AT&T license agreement as text. It was an awful job to put into HTML, of course, as contracts always are, so our sincere thanks to corran and kb8rin.
So, now we have the 'Software License Agreement' for Chrysler [page 10 of the PDF], dated 1988, and IBM, dated February 1, 1985, and now SGI, so we can compare the 2.01 paragraph sections of all the agreements.
Groklaw reader Heavyfe points out that the dates of the SGI agreement and IBM side letter predate the 'Echo Newsletter' slightly." The echo newsletters were April and August 1985.
As you will see, the SGI agreement has the Section 2.01 wording that disclaims ownership in derivatives, comparable to the DaimlerChrysler agreement: "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."
IBM's original contract does not have that permission. However, in the Side Letter, dated February 1985, it says this:
Software Agreement Number SOFT-00015, Sublicensing Agreement Number SUB-00015A and Substitution Agreement Number XFER-00015B
"This letter states understandings between our companies relating to the referenced agreements and amends certain sections in such agreements concerning SOFTWARE PRODUCTS subject to the referenced Software Agreement.. . . .
"2. Regarding Section 2.01, we agree that modifications and derivative works prepared by or for you are owned by you. However, ownership of any portion or portions of SOFTWARE PRODUCTS included in any such modification or derivative work remains with us."
The cumulative evidence indicates that the original contract with IBM was the aberration, and that the echo newsletter was AT&T's attempt to reassure everyone that they didn't mean it the way it was written and that they were claiming no derivatives, which they then put in writing in the contracts and side letter as early as February of 1985 onward. I noticed something else this time on the PDF. If you look at the signature lines, someone signed on behalf of O.L. Wilson, so someone else was there and could also likely testify as to what happened and what the intent was, if necessary. That explains to me the deposition of David Frasure. If you study the signature, that is whose signature I would guess it is. You will remember the flap over timing of the depositions of Mr. Wilson and Mr. Frasure, an argument SCO lost.
AT&T INFORMATION SYSTEMS INC. SOFTWARE AGREEMENT
AT&T INFORMATION SYSTEMS INC.
Agreement Number SOFT-00039
1. AT&T INFORMATION SYSTEMS INC., a Delaware corporation
("AT&T-IS"), having an office at 100 Southgate Parkway, Morristown,
New Jersey 07960, and SILICON GRAPHICS, INC., a California corporation
having an office at 2011 Stierlin Road, Mountain View, California
94043, for itself and its SUBSIDIARIES (collectively referred to
herein as "LICENSEE") agree that, after execution of this Agreement by
LICENSEE and acceptance of this Agreement by AT&T-IS, the terms and
conditions set forth on pages 1 through 8 of this Agreement shall
apply to use by LICENSEE of SOFTWARE PRODUCTS that become subject to
2. AT&T-IS makes certain SOFTWARE PRODUCTS available under this
Agreement. Each such SOFTWARE PRODUCT shall become subject to this
Agreement on acceptance by AT&T-IS of a Supplement executed by
LICENSEE that identifies such SOFTWARE PRODUCT and lists the
DESIGNATED CPUs therefor. The first Supplement for a specific SOFTWARE
PRODUCT shall have attached a Schedule for such SOFTWARE PRODUCT. Any
additional term and conditions set forth in such Schedule shall also
apply with respect to such SOFTWARE PRODUCT. Initially, Supplement(s)
numbered 1 and 2 are included in and made part of this Agreement.
3. Additional Supplements may be added to this Agreement to add
additional SOFTWARE PRODUCTS (and DESIGNATED CPUs therefor) or to add
or replace DESIGNATED CPUs for other SOFTWARE PRODUCTS covered by
previous Supplements. Each such additional Supplement shall be
considered part of this Agreement when executed by LICENSEE, if
required, and accepted by AT&T-IS.
4. This Agreement and its Supplements set forth the entire
agreement and understanding between the parties as to the subject
matter hereof and merge 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 as duly set
forth on or subsequent to the date of acceptance hereof in writing and
signed by a proper and duly authorized representative of the party to
be bound thereby. No provision appearing on any form originated by
LICENSEE shall be applicable unless such provision is expressly
accepted in writing by an authorized representative of AT&T-IS.
|SILICON GRAPHICS, INC.
|| AT&T INFORMATION SYSTEMS
|| [signature] `JAN
24 1986 [sic]
|| O. L. WILSON
|(Type or print name)
|| (Type or print name)
|Vice President, Engineering
|| Manager - Software Sales
1.01 CPU means central processing unit.
1.02 COMPUTER PROGRAM means any instruction or instructions, in
source-code or object-code format, for controlling the operation of a
1.03 DESIGNATED CPU means any CPU listed as such for a specific
SOFTWARE PRODUCT in a Supplement to this Agreement.
1.04 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
such SOFTWARE PRODUCT. Certain SOFTWARE PRODUCTS available under this
Agreement may contain materials prepared by other developers.
1.05 SUBSIDIARY of a company means a corporation or other legal
entity (i) the majority of whose shares or other securities entitled
to vote for election of directors (or other managing authority) is now
or hereafter controlled by such company either directly or indirectly;
or (ii) the majority of the equity interest in which is now or
hereafter owned and controlled by such company either directly or
indirectly; but any such corporation or other legal entity shall be
deemed to be a SUBSIDIARY of such company only so long as such control
or such ownership and control exists.
II. GRANT OF RIGHTS
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-IS claims no
ownership interest in any portion of such a modification or derivative
work that is not part of a SOFTWARE PRODUCT.
2.02 (a) LICENSEE may permit access to SOFTWARE PRODUCTS by its
contractors and allow use of SOFTWARE PRODUCTS by its contractors on
DESIGNATED CPUs, provided such access and use is exclusively for
LICENSEE in connection with work called for in written agreements
between LICENSEE and such contractors in accordance with Section
2.02(f) of this Agreement. LICENSEE may designate contractors' CPUs
as DESIGNATED CPUs pursuant to Section 2.04 and furnish SOFTWARE
PRODUCTS to contractors for use on such CPUs.
(b) Any claim, demand or right of action arising on behalf of a
contractor from the furnishing to it or use by it of SOFTWARE PRODUCTS
shall be solely against LICENSEE.
(c) Contractors shall agree to the same responsibilities and
obligations and other restrictions pertaining to the use of SOFTWARE
PRODUCTS as those undertaken by LICENSEE under this Agreement.
(d) When a contractor's work for LICENSEE is completed, all copies
of SOFTWARE PRODUCTS furnished to such contractor or made by such
contractor and all copies of any modifications or derivative works made
by such contractor based on SOFTWARE PRODUCT shall be returned to
LICENSEE or destroyed, including any copies stored in any computer
memory or storage medium.
(e) A contractor may not acquire any ownership interest in any
modification or derivative work prepared by such contractor based on
or using a SOFTWARE PRODUCT subject to this Agreement unless such
contractor also becomes a licensee of AT&T-IS for such SOFTWARE
(f) LICENSEE and any such contractor shall enter into a written
agreement before or at the time of permitting access to or allowing
use of any SOFTWARE PRODUCT by a contractor or furnishing a SOFTWARE
PRODUCT to a contractor. Such written agreement shall be consistent
with the requirements of this Section 2.02. Copies of such agreements
shall be provided to AT&T-IS on request; however, portions of such
agreements not required by this Section may be deleted from such
2.03 A single back-up CPU may be used as a substitute for a
DESIGNATED CPU without notice to AT&T-IS during any time when such
DESIGNATED CPU is inoperative because it is malfunctioning or
undergoing repair, maintenance or other modification.
2.04 LICENSEE may at any time notify AT&T-IS in writing of any
changes, such as replacements or additions, that LICENSEE wishes to
make to the DESIGNATED CPUs for a specific SOFTWARE PRODUCT.
will prepare additional Supplements as required to cover such changes.
Changes covered by a Supplement shall become effective after execution
of such Supplement by LICENSEE, if required, acceptance thereof by
AT&T-IS and, in the case of each additional CPU, receipt by
the appropriate fee.
2.05 On AT&T-IS'S request, but not more frequently than
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 the Agreement has
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.
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
3.01 Within a reasonable time after AT&T-IS receives the fee
specified in the first Supplement for a SOFTWARE PRODUCT, AT&T-IS
furnish to LICENSEE one (1) copy of such SOFTWARE PRODUCT in the form
identified in the Schedule for such SOFTWARE PRODUCT.
3.02 Additional copies of SOFTWARE PRODUCTS covered by this
Agreement will be furnished to LICENSEE after receipt by AT&T-IS of
the then-current distribution fee for each copy.
4.01 LICENSEE agrees that it will not, without prior written
consent of AT&T-IS, export, directly or indirectly, SOFTWARE
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.
V. FEES AND TAXES
5.01 Within sixty (60) days after acceptance of this Agreement by
AT&T-IS, LICENSEE shall pay to AT&T-IS the fees required by the
Supplement(s) initially attached hereto for the DESIGNATED CPUs listed
in such Supplement(s).
5.02 Within sixty (60) days after acceptance of each additional
Supplement by AT&T-IS, LICENSEE shall pay to AT&T-IS any fee
by such additional Supplement for the DESIGNATED CPUs listed in such additional
5.03 Payments to AT&T-IS shall be made in United States dollars
AT&T-IS at the address specified in Section 7.10(a).
5.04 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 operation of this Agreement, except any
income tax imposed upon AT&T-IS by any governmental entity within
United States proper (the fifty (50) states and the District of
Columbia). Fees specified in Supplement(s) to this Agreement and in
Schedule(s) attached to Supplement(s) do not include taxes. If
is required to collect a tax to be paid by LICENSEE, LICENSEE shall
pay such tax to AT&T-IS on demand.
6.01 This Agreement shall become effective on and as of the date of
acceptance by AT&T-IS.
6.02 LICENSEE may terminate its rights under this Agreement by
written notice to AT&T-IS certifying that LICENSEE has discontinued
use of and returned or destroyed all copies of SOFTWARE PRODUCTS
subject to this Agreement.
6.03 If LICENSEE fails to fulfill one or more of its obligations
under this Agreement, AT&T-IS may, upon its election and in
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 breach, unless within
the period of such notice all breaches specified therein shall have
been remedied; upon such termination LICENSEE shall immediately
discontinue use of and return or destroy all copies of SOFTWARE
PRODUCTS subject to this Agreement.
6.04 In the event of termination of rights under 6.02 or 6.03,
AT&T-IS shall have no obligation to refund any amounts paid to it
under this Agreement.
6.05 LICENSEE agrees that when a SUBSIDIARY'S relationship to
LICENSEE changes so that it is no longer a SUBSIDIARY of LICENSEE, (i)
all rights of such former SUBSIDIARY to use SOFTWARE PRODUCTS subject
to this Agreement shall immediately cease, and (ii) such former SUBSIDIARY
shall immediately discontinue use of and return to LICENSEE or destroy
all copies of SOFTWARE PRODUCTS subject to this Agreement. No fees
paid to AT&T-IS for use of SOFTWARE PRODUCTS on DESIGNATED CPUs of
such former SUBSIDIARIES shall be refunded; however, LICENSEE may
substitute other CPUs for such DESIGNATED CPUs in accordance with
VII. MISCELLANEOUS PROVISIONS
7.01 This Agreement shall prevail notwithstanding any conflicting
terms or legends which may appear in a SOFTWARE PRODUCT.
7.02 AT&T-IS warrants for a period of ninety (90) days from
furnishing a SOFTWARE PRODUCT to LICENSEE that any magnetic medium on
which portions of a SOFTWARE PRODUCT are furnished will be free under
normal use from defects in materials, workmanship or recording. If
such a defect appears within such warranty period LICENSEE may return
the defective medium for replacement without charge. Replacement is
LICENSEE'S sole remedy with respect to such a defect. AT&T-IS also
warrants that it is empowered to grant the rights granted
herein. AT&T-IS and other developers make no other representations
warranties, expressly or impliedly [sic]. By way of example but not
of limitation, AT&T-IS and other developers make no representations
warranties of merchantability or fitness for any particular purpose,
or that the use of any SOFTWARE PRODUCT will not infringe any patent,
copyright or trademark. AT&T-IS and other developers shall not be
to any liability with respect to any claim by LICENSEE, or a third
party on account of, or arising from, the use of any SOFTWARE
7.03 No right is granted herein to use any identifying mark (such
as, but not limited to, trade names, trademarks, trade devices,
service marks or symbols, and abbreviations, contractions or
simulations thereof) owned by, or used to identify any product or
service of, AT&T-IS or a corporate affiliate thereof. LICENSEE
that it will not, without the prior written permission of AT&T-IS,
use any such identifying mark in advertising, publicity, packaging,
labeling or in any other manner to identify any of its products or
services or (ii) represent, directly or indirectly, that any product
or service of LICENSEE is a product or service of AT&T-IS or such
affiliate or is made in accordance with or utilizes any information or
documentation of AT&T-IS or such an affiliate.
7.04 Neither the execution of this Agreement nor anything in it or
in any SOFTWARE PRODUCT shall be construed as an obligation upon
AT&T-IS or any other developer to furnish any person, including
LICENSEE, any assistance of any kind whatsoever, or any information or
documentation other than the SOFTWARE PRODUCTS to be furnished by
AT&T-IS pursuant to Sections 3.01 and 3.02.
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
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 time 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.
(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 800-828-8649 (or other number
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
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.
7.06 The obligation of LICENSEE, its employees and contractors
under Section 7.05(a) shall survive and continue after any termination
of rights under this Agreement or cessation of a SUBSIDIARY'S status
as a SUBSIDIARY.
7.07 LICENSEE agrees that it will not use SOFTWARE PRODUCTS subject
to this Agreement except as authorized herein and that it will not
make, have made, or permit to be made any copies of such SOFTWARE
PRODUCTS except for use on DESIGNATED CPUs for such SOFTWARE PRODUCTS
(including backup and archival copies necessary in connection with
such use) and for distribution in accordance with Section 7.05(b).
Each such copy shall contain any copyright notice, proprietary notice
or notice giving credit to another developer, which appears on or in
the SOFTWARE PRODUCT being copied. Specific instructions regarding
such notices may also appear in the Schedules for certain SOFTWARE
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.
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.
7.10 (a) Payments to AT&T-IS under this Agreement shall be made
payable and sent to:
AT&T INFORMATION SYSTEMS
P.O. Box 65080
Charlotte, North Carolina 28265
(b) Correspondence with AT&T-IS relating to this Agreement shall
be sent to:
AT&T INFORMATION SYSTEMS
Software Sales and Licensing Organization
P.O. Box 25000
Greensboro, North Carolina 27420
(c) Any statement, notice, request or other communication shall be
deemed to be sufficiently given to the address and any delivery
hereunder deemed made when sent by certified mail addressed to
LICENSEE at its office specified in this Agreement or to AT&T-IS
at the appropriate addressee specified in this Section 7.10. Each party
to this Agreement may change an address relating to it by written
notice to the other party.
7.11 If LICENSEE is not a corporation, all references to LICENSEE'S
SUBSIDIARIES shall be deemed deleted.
7.12 The construction and performance of this Agreement shall be
governed by the law of the State of New York.