Here's the AT&T-Regents of California license agreement [PDF] from 1987.
Reading it, you will see immediately how different it is from IBM's license agreement, and it will also help you to understand the 1992 deposition of David Frasure. This is the document that the lawyer, Ms. Fithian, kept reading to him. Update: Looking at the document more closely, we now think it's more likely the one she started to ask him about and then skipped over, because it was after Mr. Frasure's departure from the company.
I am still working on the rest of that document, but you will understand the part we already have transcribed and up on Groklaw much more comprehensively when you have this license agreement at hand.
So you don't have to take my word for it, here is IBM's license agreement of 1985 and its contemporaneous Side Letter and the later Amendment X, which is the October 17, 1996 agreement between the original SCO, Novell and IBM whereby IBM obtained further rights, such as, for example, the "irrevocable, fully paid-up, perpetual right to exercise all of its rights" under the AT&T Agreements. There are other amendments and agreements that you can find on the Contracts page, but this should be enough to show you how very different IBM's rights were and are compared to the University of California's. Any differences, then, between the 1992 Frasure deposition and the 2004 declaration are natural, considering one agreement is apples and the other is oranges.
Here's the document as text, thanks to the remarkably speedy vruz.
Agreement Number E-SOFT-00354
AT&T INFORMATION SYSTEMS INC.
1. AT&T INFORMATION SYSTEMS INC., a Delaware corporation ("AT&T-
IS"), having an office at 100 Southgate Parkway, Morristown, New Jersey 07960,
and THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, having an
office at Berkeley, California 94720, 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 A through B of this Agreement shall apply to use by
LICENSEE of computer programs (in source-code form) and documentation from
the UNIX(R) System Toolchest that are delivered to LICENSEE hereunder
("SOFTWARE PRODUCTS") and to sublicensing by LICENSEE of computer
programs (in object-code form only) and documentation ("SUBLICENSED
PRODUCTS") that contain any part of a SOFTWARE PRODUCT or its methods
and concepts. Certain SOFTWARE PRODUCTS available under this Agreement
may contain materials prepares by other developers.
2. This Agreement sets forth the entire agreement and understanding between the
parties as to the subject matter 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 respecto to such subject matter other than as
expressly provided herein or as duly set forth on or subsequent 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.
| || Accepted by:
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA
By (signature) 5/27/87
Katherine R. Delucchi
Director of Material Management
By (signature) 5/27/87
Manager, UNIX(R) Software Licensing
I. USE OF SOFTWARE PRODUCTS
1.01 AT&T-IS grants to LICENSEE a personal, nontransferable and
nonexclusive right to use in the United States each SOFTWARE PRODUCT,
solely for LICENSEE'S own internal business purposes. Such right to use includes
the right to copy such SOFTWARE PRODUCT, 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 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 tht is not part of a SOFTWARE
1.02 (a) LICENSEE may permit access to SOFTWARE PRODUCTS by its
contractors and allow use of SOFTWARE PRODUCTS by its contractors on
LICENSEE'S 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 1.02(f) of this Agreement. LICENSEE
may furnish SOFTWARE PRODUCTS to contractors for use on their CPUs.
(b) Any claim, demand or right of action arising on behalf of a contractor from
the furnishing to it or use by it or SOFTWARE PRODUCTS shall be solely against
LICENSEE except to the extent of claims based on acts or omissions of AT&T.
(c) Contractors shall agree to the same responsabilities 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 such SOFTWARE PRODUCT shall be returned to
LICENSEE or destroyed, including any copies stored in any computer memory or
(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 unless such contractor also becomes a licensee of AT&T-IS for such
(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 1.02 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 copies.
1.03 Except as provided in Sections 1.02 and 2.01, 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.
2.01 Conditional on payment by LICENSEE to AT&T-IS of a sublicensing fee
for each SOFTWARE PRODUCT on which a SUBLICENSED PRODUCT is
based, AT&T-IS grants to LICENSEE personal, nontransferable and nonexclusive
rights to make copies of SUBLICENSED PRODUCTS and to furnish, either
directly or through distributors, such copies of SUBLICENSED PRODUCTS to
customers anywhere in the world (subject to LICENSEE or its distributor
satisfying U.S. government export requirements) for use on customer computers,
provided that the entity (LICENSEE or a distributor) furnishing the
SUBLICENSED PRODUCTS obtains agreement as specified in Section 2.02 from
such a customer, before or at the time of furnishing each copy of a SUBLICENSED
(i) only a personal, nontransferable and nonexclusive right to use such copy
of the SUBLICENSED PRODUCT is granted to such customer;
(ii) no title to the intellectual property in the SUBLICENSED PRODUCT is
transferred to such customer;
(iii) such customer will not copy the SUBLICENSED PRODUCT except as
necessary to use such SUBLICENSED PRODUCT;
(iv) such customer will not transfer the SUBLICENSED PRODUCT to any
other party except as authorized by the entity furnishing the
(v) such customer will not export or re-export the SUBLICENSED
PRODUCT without the appropriate United States of foreign government
(vi) such customer will not reverse compile or disassemble the
SUBLICENSED PRODUCT; and
(vii) the SUBLICENSED PRODUCT is derived from third-party software
and that no such third party warrants the SUBLICENSED PRODUCT,
assumes any liability regarding use of the SUBLICENSED PRODUCT
or undertakes to furnish any support or information relating to the
2.02 In the United States and in other jurisdictions where an enforceable
copyright covering the computer programs of a SUBLICENSED PRODUCT
exists, the agreement specified in Section 2.01 may be a written agreement signed
by the customer or a written agreement on or accompanying the package
containing the SUBLICENSED PRODUCT that is fully visible to the customer
before the package is opened, that is accepted by the customer by opening the
package and that complies with applicable law relating to agreements of such type.
In all other jurisdictions such agreement must be a written agreement signed by the
customer. AT&T-IS does not undertake to inform LICENSEE of the jurisdictions
where such copyright exists.
2.03 LICENSEE shall require each distributor to enter into a written agreement
with its supplier of SUBLICENSED PRODUCTS (LICENSEE or another
distributor) before any SUBLICENSED PRODUCT is furnished to such
distributor. Such agreement shall include provisions consistent with and containing
the relevant substance of this Article II.
2.04 LICENSEE or a distributor may modify and make copies of
SUBLICENSED PRODUCTS, select a name for SUBLICENSED PRODUCTS
to appear on such copies (consistent with the provisions of Section 7.02), and
furnish such copies to customers and other distributors.
2.05 LICENSEE shall use its best efforts to enforce any agreements with
distributors and customers entered into purspuant to this Agreement.
2.06 If a distributor fails to fulfill one or more of its obligations under the
agreement required by Section 2.03, AT&T-IS may, upong its election and in
addition to any other remedies that it may have, at any time notifi LICENSEE in
writing of such breach and require LICENSEE to terminate all the rights granted
in such agreement by not less than two (2) months' written notice to such
distributor specifying any such breach, unless withing the period of such notice all
breaches specified therein shall have been remedied; upon such termination such
distributor shall within thirty (30) days immediately discontinue use of and return
or destroy all copies of SUBLICENSED PRODUCTS in its possesion.
2.07 (a) Any notice acknowledging a contribution of a third party appearing in
a SOFTWARE PRODUCT shall be included in corresponding portions of
SUBLICENSED PRODUCTS made by LICENSEE or distributors.
(b) Each portion of a SUBLICENSED PRODUCT shall include an appropriate
copyright notice. Such copyright notice may be the copyright notice or notices
appearing in or on the corresponding portions of the SOFTWARE PRODUCT on
which such SUBLICENSED PRODUCT is based or, if copyrightable changes are
made in developing such SUBLICENSED PRODUCT, a copyright notice
identifying the owner of such changes.
III. ORDERING AND DELIVERY
3.01 LICENSEE shall authorize certain of its employees to place orders
hereunder. Such authorized employees may order delivery of SOFTWARE
PRODUCTS and elect to sublicense SUBLICENSED PRODUCTS by remote
access to AT&T-IS'S inquiry computer.
3.02 After an order has been received and at a time chosen to minimize
transmission costs, AT&T-IS will deliver the ordered SOFTWARE PRODUCTS
to LICENSEE by remote access to LICENSEE'S computer.
3.03 Details relating to right-to-use and sublicensing fees for SOFTWARE
PRODUCTS, authorization of employees, placing of orders, delivery of
SOFTWARE PRODUCTS and security procedures related thereto are set forth in
materials that will be furnished separately to LICENSEE.
4.01 LICENSEE agrees that it will not, without the prior written consent of
AT&T-IS, export, directly or indirectly, SOFTWARE PRODUCTS 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.
5.01 AT&T-IS will mail invoices to LICENSEE (at an address to be specified by
LICENSEE) for SOFTWARE PRODUCTS. Each such invoice will include
applicable right-to-use fees, sublicensing fees, transmission costs and taxes.
LICENSEE shall pay the amount of each such invoice within thirty (30) days of the
5.02 Payments to AT&T-IS shall be made in United States dollars to AT&T-IS
at the address specified in Section 7.09(a).
5.03 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 governamental entity within the United States proper (the fifty (50) states and
the District of Columbia), If AT&T-IS is required to collect a tax to be paid by
LICENSEE, LICENSEE shall pay such tax to AT&T-IS on demand.
5.04 Payments provided for in this Agreement shall, when overdue, be subject
to a late payment charge calculated at an annual rate of three percent (3%) over the
posted prime rate of succesive posted prime rates in effect in New York City
during delinquency; provided, however, that if the amount of such late payment
charge exceeds the maximum permitted by law for such charge, such charge shall
be reduced to such maximum amount.
6.01 This Agreement shall become effective on and as of the date of acceptance
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 and
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 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 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 and immediately
destroy all copies of SUBLICENSED PRODUCTS in its possession.
6.04 In the event of termination of rights under Sections 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 shall
immediately cease, and (ii) such former SUBSIDIARY shall immediately
discontinue use of and return to LICENSEE or destroy all copies of SOFTWARE
PRODUCTS. However, a former SUBSIDIARY, or a former distributor not in
breach of its obligations to LICENSEE, may continue to use copies of
SUBLICENSED PRODUCTS on the same basis that a customer may use
SUBLICENSED PRODUCTS pursuant to Section 2.01.
VII. MISCELLANEOUS PROVISIONS
7.01 AT&T-IS warrants that it is empowered to grant the rights
granted hereunder. AT&T-IS and other developers make no other
representations or warranties, expressly or impliedly. By way of
example but not of limitation, AT&T-IS and other developers make no
representations or 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 held 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 PRODUCT.
7.02 (a) In advertising, publicity, packaging, labeling or otherwise for any
SUBLICENSED PRODUCT hereunder, LICENSEE and its distributors shall
state that such SUBLICENSED PRODUCT contains computer programs based
on UNIX System Toolchest with appropriate identification for the mark "UNIX".
(b) 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
agrees that, except as provided in Section 7.02(a), it will not, without the prior
written permission of AT&T-IS, (i) 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 an affiliate or is made in
accordance with or utilizes any information or documentation of AT&T-IS or such
7.03 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 delivered pursuant to Section 3.02.
7.04 (a) LICENSEE agrees that it shall hold all parts of SOFTWARE
PRODUCTS in confidence for AT&T-IS. LICENSEE further agrees that it shall
not make any disclosure of any or all of 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 at any time becomes available without restriction to the
general public by actos 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 7.04(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&T-IS at 800-828-8649 (or other number specified by
AT&I-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, Septemeber 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 7.09(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 providing verification and the date
of distribution. LICENSEE may also obtain materials based on a SOFTWARE
PRODUCT subject to this Agreement, either in modified or unmodified form,
from such a third party and use such materials pursuant to this Agreement,
provided that LICENSEE treats such materials hereunder the same as such
7.05 The obligations of LICENSEE and its employees under Section 7.04(a)
shall survice and continue after any termination of rights under this Agreement or
cessation of a SUBSIDIARY'S status as a SUBSIDIARY.
7.06 LICENSEE agrees that it will not use SOFTWARE PRODUCTS or
SUBLICENSED PRODUCTS except as authorized herein and that it will not
make, have made or permit to be made any copies of SOFTWARE PRODUCTS or
SUBLICENSED PRODUCTS except as necessary to excercise its rights granted
herein. 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 or SUBLICENSED PRODUCT being copied.
7.07 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.
7.08 Except as provided in Section 7.04(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.
7.09 (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
UNIX(R) Software Licensing
P.O. Box 25000
Greensboro, North Carolina 27420
(c) Any notice, request or other communication shall be deemed to be sufficiently
given to the addressee 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 address specified in this Section 7.09. Each party to
this Agreement may change an address relating to it by written notice to the other
party. Invoices will be mailed to the address specified pursuant to Section 5.02.
7.10 If LICENSEE is not a corporation, all references to LICENSEE'S
SUBSIDIARIES shall be deemed deleted.