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

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:

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.

Attachment:

Attachment - page 2

Sys. V-Ed.-040183-2

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]

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]