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More Filings in SCO v. IBM
Thursday, December 02 2004 @ 11:11 PM EST

There are more documents now on Pacer:
  • an Order one granting SCO leave to file an overlength memorandum;
  • an Order granting IBM the same right to file an overlength Opposition to SCO's Motion for Leave to File a Third Amended Complaint;
  • a Declaration by Jeremy Evans, on behalf of SCO's opposition to IBM's Motion for Partial Summary Judgment on Breach of Contract Claims, which is essentially a list of exhibits and cases. The most interesting is on page 4, the list of sealed exhibits, which includes a 1997 email from Ron Smith to Terry McKenna and a January 2002 email from Bill Sandve to Kim Tran; and
  • a second Evans Declaration, partially sealed, with two sets of exhibits attached, numbers 349-1 and 350-1.


The exhibits list includes things we haven't seen yet, even though they are not listed as being sealed, such as some letters from O. Wilson from 1987 and 1990, one of them to IBM and another to Sequent, and portions of a 1992 deposition of Mitzi Bond, as well as a November 4, 2004 declaration by Ms. Bond.

You can see why they would only use portions of her deposition, when you read the 1993 Amicus Brief by Defendants the Regents of the University of California Re Plaintiff's Motion for Preliminary Injunction in the BSDI case, which refers to Mitzi Bond's deposition, and which you can read in full on Dennis Ritchie's website. I think you will be able to guess what part SCO would like in her deposition, but the problem SCO has is, this is all talking about the Educational License, which did refer to methods and concepts, not the commercial kind that IBM has:

In other words, AT&T agreed not to claim ownership in any derivative works developed by the University; however, the University agreed that any derivative works which "contains" AT&T code (i.e., "Licensed Software") would be treated as if it were AT&T code and distributed only to AT&T licensees. See Frasure Depo., at 154:15-155:13.

Shortly thereafter, AT&T further memorialized the parties' understanding regarding ownership and distribution of Unix enhancements by drafting the Educational Software Agreement No. E-SOFT-00089 (SOFT-00089). Wilson Depo.,at 139:10 -140:1 (the SOFT-00089 agreement was a "clearer representation of our intent")[fn11]. This supplemental agreement executed in November 1985 expressly provides that AT&T claims no ownership interest in the University's software as long as it does not contain AT&T's source code or disclose its methods and concepts.[fn12] Consistent with the May 15, 1985 letter-amendment (Exh. A to Karels Decl.) SOFT00089 provides in its "Grant of Rights:"

Para. 2.01 (a) ...[the] 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 [AT&T] SOFTWARE PRODUCT subject to this Agreement is treated hereunder the same as such [AT&T] 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 [AT&T] SOFTWARE PRODUCT.* (Emphasis added.)

Para. 2.01(b)(ii) ...results enhancements and modifications (all to the extent that they do not include any portion of [AT&T] SOFTWARE PRODUCTS) are made available to anyone (including AT&T-IS and its corporate affiliates) without restriction on use, copying or further distribution.... Exhibit G, attached to the Shapreau Decl.

Thus, again, AT&T agreed in writing that the University owned all derivative code and that such derivative enhancements and modifications should be made "available to anyone" to the extent "they do not include" AT&T code.

[fn11] The SOFT-00089 license agreement was intended to "clarify" the prior intent of the parties.Wilson Depo., at 139:10- 140:1. AT&T's Director of Licensing, Otis Wilson, testified that the language used prior to that contained in the SOFT-00089 license agreement was "somewhat confusing to some people in that they thought we were trying to assert ownership to anything they created, even though it contained nothing of ours. So this is to clarify that what's yours is yours and what's ours is ours"(emphasis added). Wilson Depo., at 75:24-76:4. USL's Mitzi Bond admitted that she understood 2.01(b)ii) meant that "enhancements and modifications made by the licensee were to be made available to anyone so long as they did not include any portion of the software products licensed under the agreement" emphasis added). Bond Depo., at 137:19-138:19. However, Ms. Bond also has espoused a mental "contamination" theory by which any university student exposed to AT&T code would be beholden to AT&T for any software product he/she might subsequently develop. Bond Depo,at 220:2-13, 237:24- 238:8.

[fn12] USL's witness, Mitzi Bond, testified that the SOFT-00089 superseded AT&T's earlier agreements.Bond Depo., at 132:10-134:2. Ms. Bond testified that a licensee's use of 32V on a CPU licensed under SOFT-00089, would be subject to the terms and conditions of SOFT-00089. Bond Depo., at 39:7-43:5 referring to Exhibit J, attached to the Shapreau Decl..

[fn13] It appears that AT&T similarly tried to restrict other licensees' rights with respect to code they derived from AT&T's UNIX, because AT&T sent out a clarification to all its licensees in August, 1985 which stated: "Section 2.01. The last sentence was added to assure licensees that AT&T will claim ownership in the software that they developed -- only the portion of the software developed by AT&T." Exhibit H, attached to the Shapreau Decl. The 2.01 referred to in Exhibit H is the same 2.01 contained in the SOFT- 00089 agreement. Frasure Depo., at 1 08:21 -1 1 0; 1 1 2:7-21. USL's Mitzi Bond participated in the preparation of Exhibit H. She testified that the clarification to 2.01 "indicates that all we did was add a sentence to the existing one so that licensees would clearly understand that we were not claiming the ownership in code that they developed that didn't contain ours" (emphasis added). Bond Depo., at 189:14-191:21.

Finally, AT&T acknowledged the University's ownership rights in the University's derivative BSD code in June 1986, when AT&T signed license agreements with the University for 4.2BSD and 4.3BSD (which originated with 32V). Towers Decl., at Para. 3 and Exhibit A, attached. The agreement for 4.2/4.3BSD states in relevant part:

WHEREAS, *The Regents of the University of California (the University) is the proprietor and owner of enhancements and additions to 32V,* which together with parts of 32V comprise computer programs and documentation entitled "Fourth Berkeley Software Distribution ("4BSD)....(Emphasis added.)

* * *

Title: AT&T agrees that 4.2 and 4.3 contain proprietary software belonging to the University. *AT&T shall have no right, title or interest in or to such proprietary software* except as expressly set forth in this Agreement. (Emphasis added.) Exhibit A, attached to the Towers Decl.

AT&T's admission that the University 'owned'' the enhancements and additions to 32V included the University's right to distribute its software to the public, as evidenced in the testimony of AT&T's former Director of Licensing, Otis Wilson:

Q: And you weren't trying to assert restrictions on the part [of the software] that did not belong to AT&T?

A: That's correct. In other words, if you follow that through, it's yours. I have no jurisdiction whatsoever. Wilson Depo., at 77:19-23.

Q:... 'when the university owns it,' do you mean that they are free and clear of any restrictions by AT&T?

A: Right... Wilson Depo., at 122:5-10.


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