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The 1998 IBM-Santa Cruz Project Monterey Agreement
Wednesday, November 09 2005 @ 01:27 PM EST

Here we have the 1998 IBM-Santa Cruz Project Monterey agreement [PDF]. It was filed as an exhibit, a paper exhibit, by IBM (to #527, a redacted version of #345, part of IBM's opposition to SCO's failed attempt to file a 3rd Amended Complaint) and a volunteer picked it up for us.

One interesting find is that while the IA-32 product was predominantly SCO Unixware 7 code with IBM licensed additions and joint project work, the IA-64 product was defined like this:

1.10 "IA-64 Product" shall mean the UNIX operating system that is designed to run on Intel architecture and compatibles and which consists of IBM's AIX operating system with the addition of Licensed SCO Materials and any additional Project Work developed under this Agreement.

What else stands out like a beacon? That methods are expressly free to be used. On page 20:

11.5 Scope of Licenses.

All licenses granted to IBM and SCO under this Section 11.0 shall be worldwide, irrevocable (subject to Section 15.0, "Termination"), nonexclusive, nontransferable; shall include the right to make, have made, use, have used, lease, sell or otherwise transfer any apparatus, and to practice and have practiced any method. All such licenses shall include the right of the grantee to grant revocable or irrevocable sublicenses at grantee's discretion to its Subsidiaries, of the same or lessor scope as granted here, without other permission or accounting. Except to the extent that royalties may be due under the Agreement, the licenses stated in this Section 11.0 shall be fully paid up.

That isn't even the best.

After all SCO's whining about IBM quitting the project, note what the contract permitted IBM to do, on page 28:

Freedom to Market

Subject to the terms and conditions of this Agreement, both parties shall have full freedom and flexibility in the design and implementation of its marketing programs for any deliverables, including, without limitation, the decision of whether to market or discontinue marketing any particular Deliverable, the selection of marketing channels, the timing and sequence of announcements and roll-out programs, the determination of pricing strategy, the specification of license terms, and the offering of such Deliverables in connection with or as part of other software products and systems with any computer hardware equipment. Nothing in this Agreement shall be construed as an obligation, guarantee or commitment by either party that any Deliverable shall be announced or marketed, or that any marketing effort will be productive of any level of sales. . . .

15.2 Change of Control

Notwithstanding Section 15.1, IBM shall have the right to terminate this Agreement immediately upon the occurrence of a Change of Control of SCO which IBM in its sole discretion determines will substantially and adversely impact the overall purpose of the cooperation set forth by this Agreement and applicable Project Supplements ...

This contract expressly defines "Derivative work" in terms of copyright law on page 1. Either party was essentially free to do whatever it liked with its own project work, or with jointly created project work. The material SCO licenced to IBM is licensed very freely. The reverse is not true. I'd characterize the contract as strongly favoring IBM, frankly, but at the moment, that is a good thing. IBM is allowed to do almost anything it likes with this material, including sublicensing source code, with the restriction that it could not allow the licensee to further sublicence the source. However, there is no restriction on the dissemination of any methods and concepts within oldSCO's source code. That is significant, because that's about all that is left of SCO's theory of their case, as far as I can understand their theory.


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