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To read comments to this article, go here
Maciaszek Trial Testimony in SCO/Novell Contradicted - Updated: Wilson Confirmed
Monday, March 23 2009 @ 10:11 PM EDT

I found something eye-poppingly interesting. Do you remember at the SCO v. Novell trial, where John Maciaszek testified that there was never a charge for earlier versions of Unix/UnixWare? That going all the way back to AT&T days, the earlier products were thrown in free? I have gotten hold of a contract where it seems to me that the licensee was charged for earlier products. Yes. $400 a copy.

Update: And now I find on page two confirmation of Otis Wilson's testimony in SCO v. IBM that modifications were never claimed by AT&T.

It's an agreement between AT&T and the University of New South Wales, dated May 23, 1986. I have it in paper form, so I've scanned in the cover letter and the list of allowed software to show you. First, here's the cover letter [PDF].

Notice that it says that notwithstanding Section 4 of the Schedule to the contract, AT&T agreed that the University could also use "those UNIX operating systems delivered to you under prior educational software agreements". So they got *special permission* even to use older versions of the software they had already purchased. It's conceivable this letter was sent to correct a mistake, or clarify some confusion.

So now let's take a look at Section 4 [PDF].

Here's the eye-popping part. Under the subhead "Other Software" it lists products that could be used in the US and those that could be exported. Then it says:

Versions of such products, except those marked with an asterisk (*), are available from AT&T for various types of CPUs at $400 a copy.

Yet the testimony at trial went like this:

Q. Now, when you licensed UnixWare and at the time that you were Novell, did Novell grant the customer any license to any older versions of the System V products?

A. Well, the standard practice going back to AT&T days was to grant the right to use prior products as part of the new products.

Q. And you said that goes back to AT&T days?

A. Oh, yeah. Started well before I joined the organization. Go back and look at the SVR1.1 prior, and there were always prior products listed there....

Q. Okay. Did you have personal knowledge of that licensing of prior products at the time that you joined UNIX Systems Labs?

A. Oh, yes. I mean, I was involved in creating the 4.2 license, so I understand very well what the situation was.

Q. Were the customers who were given those prior
products asked to pay anything extra for the prior products?

A. Absolutely not.

Q. And is that a consistent practice throughout the
time that you have been at Novell and both its predecessor and
successor companies?

A. Absolutely. I can't remember or recall any
occasion where there would be any even thought given to charge
them for that.

Can you match those words up with the contract I just found? Me neither.

On page two, we find the grant of rights [PDF] section. Remember how SCO tried to claim that Otis Wilson's testimony in 2003 contradicted what he said in the BSDI case in 1992 on the subject of modifications and who they belonged to? This is, of course, an educational license. And note the language:

AT&T-IS grants to LICENSEE a personal, nontransferable and nonexclusive right to use in the AUTHORIZED COUNTRY each SOFTWARE PRODUCT identified in the one or more Supplements hereto, solely for educational use and solely on or in conjunction with DESIGNATED CPUs for each 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 modifications or derivative work that is not part of a SOFTWARE PRODUCT.

1. Educational use is limited to 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 SOFTWARE PRODUCTS. Such uses are permitted only provided that i) neither the results of such research nor any enhancements or modifications 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 SOFTWARE PRODUCTS are made available to anyone including AT&T-IS and its corporate affiliates without restriction on use, copying or further distribution, notwithstanding any proprietary rights (such as copyright or patent right) that could be asserted by LICENSEE, its employees, 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 a SOFTWARE PRODUCT shall be subject to the provisions of Section 7.05(b).

And that is exactly what Otis Wilson said. And a bit more. How do you like the part about sharing modifications freely, the "without restriction on use, copying or further distribution" language? Evidently in the early days, Unix was a lot more like the GPL, at least as far as modifications were concerned. And AT&T specifically disclaims any ownership interest in modifications, reserving its rights only to its own software.

Update 2: For contrast here's the language in the 1987 DaimlerChrysler license:

6. Other Software

The products listed below may be used in' the United States on DESIGNATED CPUs for UNIX System V? Release 3.0 as if they were that product. The products may also he used outside the United States on DESIGNATED CPUs for UNIX System V, Release 3.0, International Edition as if they were that product. Only those products marked with an "@" may be shipped outside the United States by AT&T.

All prior releases and versions of UNIX System V
@All prior releases and versions of UNIX System V, International Versions

UNIX System III
UNIX 32V Time-Sharing System, Version 1.0
UNIX Time-Sharing System, Seventh Edition
UNIX Time-Sharing System, Sixth Edition
UNIX :Programmer's Workbench System, Edition 1.0
UNIX Mini Time-Sharing System, Version 6

Same time period. No $400. All prior releases specifically allowed.

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