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UnixWare Copyrights - When Did Novell Get Them and For How Long?
Tuesday, April 28 2009 @ 11:59 PM EDT

In SCO's reply to Novell's appellate brief, it tells the court:
Contrary to Novell's allegations, Santa Cruz "did not add any Novell copyright notices to," or "remove any copyright notices" from, the source code it acquired from Novell. (106666-7.) In fact, it was Novell that changed the notices to add the Santa Cruz notice. (Id.) In addition, the date range of the Novell notices from 1984-95 could not pertain to UnixWare source code, because Novell did not acquire the UNIX and UnixWare source code from AT&T until 1993. (106668.) Instead, since Netware code was "contained in UnixWare," the notices pertained to Netware, which Novell had owned since "the mid-1980s." (00317;106668.)
This is so garbled, it's like a knot in your sneakers. One hardly knows where to begin. But it's worth it to try to unravel it, so here we go.

I'm going to present some new evidence that Novell did have copyrights prior to 1993, and that there was no NetWare that I can find in UnixWare until after 1993, but I will also republish an article Groklaw published on June 17, 2004, "Notice this Notice?". Yes. Five years ago. It presents a clear timeline that will help to lift this fog.

SCO has more than once told journalists that they read Groklaw and use it as a reference, including the attorney who signed SCO's filing, so I can't figure out how they could write this. Have they really forgotten that Novell and USL set up Univel as a joint venture in 1991 and that the first version of UnixWare Novell produced appeared in 1992? Have they forgotten our 2004 article? I'll show you some Novell and Santa Cruz copyright notices to refresh everyone's memory from that article, but here's a 1995 Novell press release showing Novell still very much involved in Unix and UnixWare, after the APA, in working with Santa Cruz on UNIX products.

To get some context, here's an October 3, 1993 New York Times article, New Crusader in Software's Holy War. Thank you, Google. It includes a timeline that supports the dates mentioned, but it also tells us that Novell had just announced that it would give away the UNIX trademark, likely to X/Open, that year. Ah! The sweet smell of truth.

In order to understand fully what SCO said, though, first we need to review quickly what Novell wrote in its appellate brief that SCO is responding to. Novell said this about the copyrights in Unixware:

A. Santa Cruz's APA Implementation

The APA was forward-looking. The goal was for Santa Cruz to develop and sell a "Merged Product" based on Novell's UnixWare that would provide a platform for Novell's NetWare. (06102(8);00288(Art.4.18);01425-26;01438.) After the APA closed, Santa Cruz devoted substantial resources "to upgrade UnixWare for high-performance computing on Intel processors." (05819(49);15541-42.)

Santa Cruz changed the copyright notices on UnixWare products to state:

Copyright 1996 The Santa Cruz Operation, Inc. All rights reserved.

Copyright 1984-1995 Novell, Inc. All rights reserved.

(10310.) SCO continues to use that form of copyright notice, even on recent products. (07408.) These notices reflect that (1) Novell owns the copyrights for code developed 1984-1995, having bought those rights from AT&T and withheld them from the sale to Santa Cruz; and (2) Santa Cruz owns the copyrights on code added from 1996. See 2 Nimmer on Copyright 7.12[C][1](noting "practice of many publishers to include earlier copyright notices as well as a notice for the newly published derivative or collective work").
As I'll show you in our 2004 article, Novell actually continued to work on UnixWare in 1996 also. The press release, above, from 1995 confirms that Novell didn't retire after the APA. So, let's take a look at that article from the New York Times: 1 which gives us their UNIX timeline:
1983: A.T.& T. introduces a new generation of Unix, called System V, and changes licensing terms that removes Bill Gates's Unix pricing advantage. Hewlett-Packard introduces its Unix version, HP-UX.

1984: X/Open, a consortium is founded by a group of European computer companies to counter I.B.M.'s dominance.

1987: X/Open endorses a set of Unix standards known as Posix. A.T.& T. faces backlash over Unix licensing terms.

1988: A.T.& T. buys 20 percent of Sun Microsystems. I.B.M. enters Unix market with AIX software.RIGHT?? A broad industry coalition forms the Open Software Foundation in opposition to the A.T.& T.-Sun alliance and to promote an "open" approach to Unix that is not dependent on any one company's version. To counter the Open Software Foundation, A.T.& T. forms the Unix International consortium, and the Unix war is on.

1989: A.T.& T. and Sun introduce version of System V Unix that incorporates Berkeley and Xenix features.

1990: Products from Novell and other companies begin to appear that let Novell Netware PC networks interact with Unix systems. A.T.& T. spins off Unix development into a separate subsidiary, Unix System Laboratories. Open Software Foundation introduces its Unix standard, OSF/1, but only Digital Equipment fully embraces it.

1992: Novell and A.T.& T.'s Unix System Labs form joint venture, Univel. Novell introduces its own version of Unix, called Unixware. Novell agrees to buy Unix System Labs.

1993: June -- Novell completes acquisition of Unix Sy[s]tem Labs. Sept. -- Novell indicates intention to give Unix brand name and underlying software code to the X/Open consortium. (Source: Open Systems Today)

Did you notice the year UnixWare was introduced by Novell was 1992? So SCO got that year wrong. What? You say you don't trust SCO but the media can't be trusted either? Fair enough. So let's look at Novell's 10-K for the year ended October 31, 1993. They ought to know what really happened. Notice that Novell says it got involved in UNIX in 1991:
In April 1991, the Company invested $15.0 million in UNIX System Laboratories, Inc. (USL), a subsidiary of AT&T that develops and licenses the UNIX operating system and other standards-based software to customers worldwide. In December 1991, the Company announced the formation of Univel, a joint venture with USL, formed to accelerate the expanded use of the UNIX operating system in the personal computer and network computing marketplace. Novell and USL contributed cash and technology rights to Univel. Then in June 1993, the Company acquired the remaining portion of USL by issuing approximately 11.1 million shares of Novell common stock valued at $321.8 million in exchange for all of the outstanding stock of USL not previously owned by Novell and assumed additional liabilities of $9.4 million. The transaction was accounted for as a purchase and, on this basis, resulted in a one-time write-off of $268.7 million for purchased research and development in the third quarter of fiscal 1993....

UNIX SYSTEMS GROUP. USG provides a full suite of UNIX operating system and UNIX connectivity products. Key products include:

Operating System Products. Novell's UnixWare operating system provides a powerful application server and client for today's distributed computing environments. The current product offerings are the UnixWare Application Server 1.1 and the UnixWare Personal Edition 1.1. UnixWare uses the network services available from NetWare and the cross-platform development tools available from AppWare to make applications available throughout the entire enterprise. UnixWare is easy to use, enabling users to be productive right away. Its fully graphical user interface gives users access to all the enterprise-wide information and services available in the corporate computing environment with simple point-and-click mouse functions. UnixWare also supports a variety of international languages.

Optional products for the Application Server systems include: UnixWare Server Merge for Windows, which provides UnixWare users with multiuser DOS access and limited multiuser MS Windows access; UnixWare Online Data Manager 1.1, a UNIX System V, industry-standard, robust file system designed to maximize system and data availability and improve I/O performance; and OracleWare System-UnixWare Edition, a powerful applications data server platform which integrates the UnixWare Application Server 1.1 operating system with Oracle 7 cooperative database server on a single CD-ROM disk.

Optional add-on products for UnixWare Personal Edition include UnixWare NFS, which enables resource-sharing with other UNIX systems; UnixWare C2 Auditing, which records security-related events to help detect attempts to breach security; and UnixWare Encryption Utilities, which provide support for DES encryption and decryption.

Novell also supplies the UNIX operating system source code to other UNIX system vendors. The latest version, UNIX System V Release 4.2 (SVR4.2), unifies several earlier versions and offers greatly enhanced ease of use and ease of administration features....

In April 1991, the Company purchased a minority equity position in UNIX System Laboratories, Inc. (USL), a subsidiary of AT&T that develops and licenses the UNIX operating system and other standards-based software to vendors worldwide. This cash investment of $15.0 million was accounted for using the cost method. Later, in December 1991, the Company announced the formation of Univel, a 55% owned joint venture with USL, formed to accelerate the expanded use of the UNIX operating system in the personal computer and network computing marketplace. Novell and USL contributed cash and technology rights to Univel. In June 1993, the Company acquired the remaining unowned portion of USL by issuing approximately 11.1 million shares of Novell common stock valued at $321.8 million in exchange for all of the outstanding stock of USL not previously owned by Novell and assumed additional liabilities of $9.4 million. The transaction was accounted for as a purchase and, on this basis, a one-time write-off of $268.7 million for purchased research and development was incurred.

Univel has been included in the consolidated financial statements of Novell since December 1991 by virtue of Novell's 55% ownership interest. That ownership interest is now 100% since the June 14, 1993 acquisition of USL, whereby both USL and Univel are now included in the consolidated financial statements of Novell.

So that is what really happened. Not only did Novell get all the copyrights from AT&T, it also was already developing code prior to 1993. Univel and Novell were developing something they called the Destiny desktop Unix operating system, based on the Unix System V release 4.2 kernel, and eventually it became UnixWare 1.0 in 1992. There was a personal edition, limited to just two users. NetWare and UnixWare came later, in 1993, according to Unix.org:
In early 1993, AT&T sold its UNIX System Laboratories to Novell which was looking for a heavyweight operating system to link to its NetWare product range. At the same time, the company recognized that vesting control of the definition (specification) and trademark with a vendor-neutral organization would further facilitate the value of UNIX as a foundation of open systems. So the constituent parts of the UNIX System, previously owned by a single entity are now quite separate.
So, not only was Novell the owner of UnixWare copyrights prior to 1993, it also had a UnixWare product prior to that year that apparently had no NetWare code in it.

What about 1996 onward? Let's take another look at Groklaw's 2004 article once again, and you may wish to have all the relevant documents handy, so here is where you can find all of them:

And with that, once again, Notice this Notice?:

*******************************

Notice this Notice?
~by Dr Stupid

Executive Summary

The clearest and least biased indication of the nature of the 1995 agreement between Novell and The Santa Cruz Operation (hereafter "oldSCO") comes from the contemporaneous statements and, more crucially, actions of both parties.

oldSCO's handling of the UnixWare source code in the years following the deal seem to me most consistent with those of a company that had obtained the right to freely derive from and sell products based on the code, but inconsistent with those of a company that had been granted, or believed they owned, the copyrights on that code.

There is also some evidence that indicates to me that the notices of copyright ownership became gradually obfuscated over time, either by accident or design.

A 1996 Clarification of What SCO Purchased from Novell

Here is a 1996 UNIXWARE/OPENSERVER WATCH, which described itself like this:

"UNIXWARE/OPENSERVER WATCH (UOW) is produced by UnixWare Technology Group (UTG) Inc., a not-for-profit global trade association with one purpose: to provide a forum in which member companies promote, influence and advance the development of UnixWare and allied technologies."

Notice this apology from the editor for an unclear earlier UOW:

"AN APOLOGY, AN EXPLANATION AND A COMMITMENT First, an apology. In UOW #10, there were several incorrect uses of the UNIX trade mark, for which your UOW Editor takes full responsibility. Also, some of the writing might have confused some readers into thinking that SCO had taken the reins of the entire UNIX System business, and not just the UNIX System licensing and UnixWare businesses SCO purchased from Novell. Again, apologies from your editor." [emphasis added][Note update at end of article]

A History Lesson

In 1995, Novell and oldSCO announced a deal whereby oldSCO would take over the Unixware business from Novell. Novell may have got rid of the UnixWare business, but in 1995 it hardly looked as if Novell was washing its hands of UNIX per se:

"Hewlett Packard, Novell and SCO jointly announced a business relationship to deliver a high-volume UNIX operating system with NetWare and enterprise services. . . .

"Novell will work with HP to produce a high-performance implementation of its NetWare Directory Services (NDS) and File/Print Services for HP-UX, and integrate NDS with DCE. . . .

"SCO will utilize Novell's Provo, Syndey and Dusseldorf UnixWare support staff through Q2'96. SCO will fully support UnixWare products with its own staff beginning in Q2'96."

Novell and oldSCO had more than one link:

"Novell will receive approximately 6.1 million shares of SCO common stock, resulting in an ownership position of approximately 17% (post transaction) of the outstanding SCO capital stock. . . .

"In order to meet customer support needs and protect development requirements, SCO intends to hire a number of Novell employees. "

At the time of the deal, Novell was already working on a new version of the product, which would be officially called UnixWare 2.1.

Although the deal was signed in 1995, the actual handover of the business from Novell to oldSCO would not happen until early 1996. In the meantime Novell kept working on Unixware, and in December of 1995, UnixWare 2.1 was completed.

"[UW2.1 was] 100% [Novell]. The ctime dates on the SCO UnixWare 2.1 CD-ROM (the commercial version) are Dec 12 and Dec 13 1995. The business was transitioned to SCO on 31 Jan 1996."

In early 1996, Novell handed over the UnixWare business to SCO, including the new product. Unixware 2.1 was released to the public as a SCO product, though no one at oldSCO had actually written any of it.

While oldSCO was getting familiar with their new product, they hired a number of Novell employees to maintain it in the meantime - remember:

"In order to meet customer support needs and protect development requirements, SCO intends to hire a number of Novell employees. "

Late in 1996, SCO released an updated version of UnixWare - UnixWare 2.1.1. This was over a year after the original deal was announced, and 9 months after the handover of the business.

One would suppose, from the above history, that Novell's contributions to UnixWare had stopped in December of 1995. But this is not so; and we can see that because we can see one of the files that make up UnixWare 2.1.1.

A Novell employee, as part of an internet discussion in 1997, revealed the copyright header on one of the Unixware 2.1.1 files - an important "header file" called "stdio.h"

/*Copyright (c) 1990, 1991, 1992, 1993, 1994, 1995, 1996 Novell, Inc. All Rights Reserved.*/
/*Copyright (c) 1988, 1990 Novell, Inc. All Rights Reserved.*/
/* All Rights Reserved */

/*THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF Novell Inc.*/
/*The copyright notice above does not evidence any */
/*actual or intended publication of such source code.*/

#ifndef _STDIO_H
#define _STDIO_H
#ident"@(#)/usr/include/stdio.h.sl 1.1 u211 09/27/96 52255 SCO"

The "u211" shows this file is from Unixware 2.1.1. The 9/27/96 is the date the file was last changed - months after Novell had handed over to oldSCO. And the copyright notice includes a (c)1996 Novell - no SCO at all.

So, even months after the handover from Novell to SCO of the UnixWare business, Novell were still making improvements to UnixWare and oldSCO was acknowledging them as holding the copyrights. The Novell employees helping oldSCO with support in early 1996 could not have been "working for hire" for oldSCO as otherwise their contributions would have been (c) SCO, irrespective of the APA amendments. Novell and oldSCO were still acting as if Novell owned the copyrights to the SysV core materials, and oldSCO was the "publisher" to the wider world.


These files were freely available from SCO's ftp server at the time, via anonymous download, and they can still be found at various mirrors for SCO customers.

The 2.1.1 update files confirm the above USENET posting and also contain other files with a (c) 1996 Novell copyright, e.g.:

/* Copyright (c) 1990, 1991, 1992, 1993, 1994, 1995, 1996 Novell, Inc. All Rights Reserved. */
/* Copyright (c) 1984, 1985, 1986, 1987, 1988, 1989, 1990 Novell, Inc. All Rights Reserved. */
/* All Rights Reserved */

/* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF Novell Inc. */
/* The copyright notice above does not evidence any */
/* actual or intended publication of such source code. */

#ifndef _SVC_ERRNO_H /* wrapper symbol for kernel use */
#define _SVC_ERRNO_H /* subject to change without notice */

#ident "@(#)/usr/include/sys/errno.h.sl 1.1 u211 09/27/96 44690 SCO"
#ident "$Header: $"


By the time of the next update, UnixWare 2.1.2, oldSCO had (according to the plan outlined above) taken over development of the product. Yet the 2.1.2 update (from 1997) still includes non-NetWare material with (c) Novell on it.

The 2.1.3 update is from 1998 and is much larger. It includes many updates to man pages (still with Novell copyrights.) The file
/usr/sbin/pppconf is updated to vintage 1998 - still (c) Novell; and /usr/include/sys/xti.h is also still (c) Novell.

In fact, there are only 2 source files in this update which have a (c) Santa Cruz copyright - a small shell script and this:

/*
* Copyright (C) 1997 The Santa Cruz Operation, Inc.
* All Rights Reserved.
* The information in this file is provided for the exclusive use of
* the licensees of The Santa Cruz Operation, Inc.
* The information in this file is provided "AS IS" without warranty.
*/
/*
* Copyright (C) 1995-1997 Intel Corporation.
* All Rights Reserved.
*
* This update binary code is distributed for the sole purpose of
* being loading into Intel P6 Family microprocessors in systems
* upon which your operating system is installed or executed.
*
* You may not make any derivative work of, nor perform any reverse
* engineering upon, the update binary code, nor facilitate the
* update to be loaded into any non-Intel processor.
*/
/*
* Tunable INTEL_CPUREV is autotuned by idbuild, to minimize the
* size of the Pentium Pro & Pentium II microcode updates table.
*/

#include "config.h"

#ifndef INTEL_CPUREV /* tunable is missing so */
#define INTEL_CPUREV 0x6000000 /* link all p6_updates */
#endif
#define CPU (INTEL_CPUREV >> 16) /* family, model, step */
#define REV (INTEL_CPUREV & 0xffff) /* microcode revision */

unsigned long p6_updates[] =
{
#if (REV 0x00000001, 0x00000b27, 0x12181996, 0x00000611,
0x05793e46, 0x00000001, 0x00000000, 0x00000000,
0x00000000, 0x00000000, 0x00000000, 0x00000000,
[snip lots of hex data]
/* record built INTEL_CPUREV in terminating line of table */
0x00000000, INTEL_CPUREV, 0x00000000, 0x00000000
};

I'm not sure what that (c) SCO is for, since they seem to have simply taken the Intel file and just put their own header on it.

Here is what is supposed to be in a copyright notice, according to the US Copyright Office's Copyright Basics page:

"Form of Notice for Visually Perceptible Copies

"The notice for visually perceptible copies should contain all the following three elements:

1. The symbol (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and

2. The year of first publication of the work....

3. The name of the *owner of copyright* in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner." [emphasis added]

So, the names mentioned should be the copyright owners, not a history of past authors. Novell wasn't writing UNIX in 1984, AT&T was. But because Novell bought the copyright from AT&T/USL, they got to say "(c) 1984 Novell."

It follows logically that if oldSCO bought the copyrights from Novell, the notice should read "(c) 1984-1997 The Santa Cruz Operation" and not mention Novell at all.

What does this mean?

  • Several months after the deal that newSCO now claims gave them the copyrights, oldSCO was happily selling a product that showed Novell as owning copyrights.
  • Novell was still contributing code to the product even after oldSCO supposedly "took it over".
  • In 1998, years after the APA and years after Amendment 2, oldSCO was still leaving (c) Novell notices untouched in its updates to the UnixWare system - including updates to the manuals of which newSCO explicitly claimed the copyright in its complaint against AutoZone.
You ain't seen nothing yet

As mentioned, the 2.1.3 update does not add SCO copyrights to system files: in fact it contains several updated man pages and some headers that still say (c) Novell. However, it does alter some system header files.

If one compares the errno.h file from UW2.1.1 and UW2.1.3 with a "diff" program, one can see that none of the code has changed. The only real change is that the copyright notice has been removed. That's right - (c) Novell is not replaced with (c) SCO, but instead the copyright header is simply stripped.

The same is done to various other system header files in the 2.1.3 update. The reader is invited to draw his or her own conclusions.

The step from 2 to 7

In 1998 oldSCO released UnixWare 7 - the merger of OpenServer 5 and UnixWare 2 (The "merged product" referred to in the APA.) The following makes use of information obtained from a legitimate UnixWare 7.1.1 system and its associated media kit.

Looking at the actual files on a UnixWare 7 system, we find that the errno.h file contains a simple (c) 1998 The Santa Cruz Operation notice. Of course this copyright notice is not complete since errno.h was not wholly authored in 1998, but the more significant point is the overall history of this file while it was in oldSCO's hands:

  • UnixWare 2.1.1 - (c) Novell
  • UnixWare 2.1.2 - (c) Novell
  • UnixWare 2.1.3 - No copyright notice
  • UnixWare 7 - (c) oldSCO

CD1 - the installation CD - boots to a miniature UnixWare system to conduct the install. The data for the installation is held in several folders on the CDROM, each of which is like a partly unpacked "pkg" format archive. I say partially, because although the individual files are present in a series of directory structures topped with "/root.#" (where # is a number) rather than held in a cpio-style archive, most are compressed and must be unpacked with the traditional UNIX "uncompress" before reading.

From the Horse's Mouth

There is a package called "BASE", which as you might guess from the name contains (inter alia) the UW kernel:

PSTAMP=UW7 04/07/98
ARCH=IA32
PKG=base
NAME=Base System
DESC=Base Operating System, commands and utilities.
CATEGORY=system
VENDOR=SCO
CLASSES=sysdir kernel sysutil inst vtool intrfc config term modem sysinst need upnover none
ORDER=sysdir kernel sysutil inst vtool intrfc config term modem sysinst need upnover none
MAXINST=1
[snip]
RELEASE=5
VERSION=7.0.0u
PRODUCTNAME=UW
PREDEPEND=base
COMPRESSED=true


[Aside: the installation program actually builds the kernel (from a collection binary modules) during the installation.]

Here is the copyright info for this package, taken from the "copyright" file which it contains:

(C) Copyright 1996-1998 The Santa Cruz Operation, Inc. All rights reserved.
Copyright 1984-1995 Novell, Inc. All Rights Reserved.
Portions Copyright (c) 1989 INTERACTIVE Systems Corporation.
Portions Copyright (c) 1990, 1991, 1992 INTEL Corporation.
Portions Copyright (c) 1993 Compaq Computer Corp.
All Rights Reserved.


In fact there are 96 "copyright" files mentioning Novell on CD1 alone, most of the format:

(C) Copyright 1996-xxx The Santa Cruz Operation, Inc. All rights reserved.
Copyright 1984-1995 Novell, Inc. All Rights Reserved.

These "copyright" files are not mere leftovers inherited from Novell, since at the time of the APA they would have contained only the Novell copyright notice. Therefore oldSCO had (in 1996-1997) gone through each of these files and added their copyright notice dating from 1996, quite deliberately leaving the Novell notice intact.

A Cast of Thousands

Now, the install program places a "copyrights.list" file on the hard disk, which reads (in part):

Copyright (c) 1976-1998 The Santa Cruz Operation, Inc. All Rights Reserved.
...snip...
Copyright (c) 1976-1992 AT & T
Copyright (c) 1987-1995 Computer Associates International, Inc.
...snip...
Copyright (c) 1988-1997 Edison Design Group, Inc.
Copyright (c) 1983-1997 Eric P. Allman
...snip...
Copyright (c) 1993-1995 Hewlett-Packard Company
Copyright (c) 1995 Hitachi, Ltd.
Copyright (c) 1990-1998 Intel Corporation
Copyright (c) 1992-1998 International Business Machines Corporation
Copyright (c) 1984-1998 Massachusetts Institute of Technology
...snip...
Copyright (c) 1987-1988 Microsoft Corporation
...snip...
Copyright (c) 1993-1998 Novell, Inc.
...snip...
Copyright (c) 1982-1995 The Regents of the University of California
Copyright (c) 1993-1995 Sun Microsystems, Inc.
Copyright (c) 1989-1997 The Open Group (formerly OSF)
...snip...
Copyright (c) 1992-1998 Compaq Computer Corporation
Copyright (c) 1994-1998 Digital Equipment Corporation
...snip...
All Rights Reserved.

A certain inconsistency is apparent with the "copyright" data on the packages themselves; but note the following:
Copyright (c) 1976-1998 The Santa Cruz Operation
Copyright (c) 1976-1992 AT & T
Copyright (c) 1993-1998 Novell, Inc.

The AT&T and Novell ranges together span the years of oldSCO's declaration. Aside: how did AT&T still hold a copyright on part of UnixWare?

Although oldSCO appears to be claiming a copyright going back to 1976, there's only one package with a COPYRIGHT file that mentions 1976. Strangely, it's for the CDE login manager, which I believe didn't exist back in 1976.

The notice starts (emphasis mine):

UnixWare 7

Copyright (c) 1976-1998 The Santa Cruz Operation, Inc. and its suppliers.
All Rights Reserved.

The "and its suppliers" effectively makes the copyright notice very vague about who owns what. It effectively forces one to look at all the other notices - which as we have seen, include several references to Novell. Overall, oldSCO's stance looks like an assertion of collective copyright - that oldSCO had the copyright on the specific compilation and integration of programs and code that made up UnixWare, and could thus pursue those who copied UnixWare as a whole, but had little copyright interest in any given program or code. [The situation is similar to that of the publisher of an anthology of poetry.]

As mentioned previously, the installation program actually builds the kernel (from a collection of binary modules) during the installation. The UnixWare kernel is also rebuilt from those modules as part of certain system configuration procedures. The "svc" module has within it:

UnixWare %v for the Intel386(tm) Family
Copyright 1984-1995 Novell, Inc. All Rights Reserved
U.S. Pat. No. 5,349,642

None of the other modules have a Santa Cruz copyright that I've spotted yet.

What is the "svc" kernel module for? According to this USENET post, John Wiegley tells us that svc is the "System V configuration" module.

That boot-up message ("UnixWare %v for the Intel386(tm) Family") is the built-in default - it can be overridden by a file called "bootmsgs". Sure enough, oldSCO provided one - here is the relevant extract:

BOOTMSG1=Starting UnixWare...
TITLE=UnixWare 7, based on UNIX System V Release 5 from SCO
COPYRIGHT=Copyright (c) 1976-1998 The Santa Cruz Operation, Inc. and its suppliers. All Rights Reserved.


And Still Footprints in the Code

Along with the operating system binaries, the installation also includes system header files. Here is a particularly interesting one:
/usr/include/machlock.h - it appears to deal with atomic locks, a low-level system operation.

/*
* Copyright (c) 1999 The Santa Cruz Operation, Inc.. All Rights Reserved.
*
* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF THE
* SANTA CRUZ OPERATION INC.
*
* The copyright notice above does not evidence any actual or intended
* publication of such source code.
*/

/* Copyright (c) 1990, 1991, 1992, 1993, 1994, 1995 Novell, Inc. All Rights Reserved.*/
/* Copyright (c) 1988, 1990 Novell, Inc. All Rights Reserved. */
/* All Rights Reserved */

/* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF Novell Inc. */
/* The copyright notice above does not evidence any */
/* actual or intended publication of such source code. */


Let's compare that to another UnixWare header file that Novell definitely retained the copyrights to (by the admission of newSCO's own lawyers) - the NetWare stuff:


/*
* Copyright (c) 1998 The Santa Cruz Operation, Inc.. All Rights Reserved.
*
* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF THE
* SANTA CRUZ OPERATION INC.
*
* The copyright notice above does not evidence any actual or intended
* publication of such source code.
*/

/* $Novell-NWU: $Header: /proj6/ncps/nwu_top/nuc/include/nw/nwerror.h,v 1.3 1996
/* Copyright (c) 1990, 1991, 1992, 1993, 1994, 1995 Novell, Inc. All Rights
/* Copyright (c) 1993 Novell, Inc. All Rights Reserved. */
/* All Rights Reserved */

/* THIS IS UNPUBLISHED PROPRIETARY SOURCE CODE OF Novell Inc. */
/* The copyright notice above does not evidence any */
/* actual or intended publication of such source code. */


Not enormously different is it? Would you conclude, looking at these two files, that Novell owned the copyright on the latter and The Santa Cruz Operation on the former? Or would you conclude that Novell owned them both and oldSCO was merely asserting its collective copyright on UnixWare as a whole?

A Scrivener's Error?

newSCO has dismissed the original APA's explicit exclusion of copyrights as a "scrivener's error" - that is to say, that it was everyone's intention in 1995 that oldSCO receive the copyrights and the agreement was merely incorrectly drafted. However, on its face the UnixWare 2.1.1 update shows me that in 1996
(a) Novell was more involved in UnixWare at the time than newSCO has subsequently represented;
(b) oldSCO was not acting like a company that had bought the copyrights;
(c) Novell was not acting like a company that had sold them.

This is not the only evidence, moreover. In particular, if the exclusion of copyrights was really just a typo, then one would have expected it to be corrected in Amendment 1. Instead,
Amendment 1 actually adds the language

"In addition, Buyer shall not, and shall have no right to, enter into new SVRX Licenses" [emph mine]

There is a second, more subtle variant on the "error" scenario that might be advanced - namely, an analogue of the oldSCO/Caldera deal in which oldSCO originally retained the OpenServer rights and later sold them to Caldera. In this scenario the copyrights were not intended to be transferred, but later on oldSCO and Novell agreed to transfer them for some reason and created Amendment 2 to that effect.

This scenario, though, again fails to gel with the actions of the companies at the time. Surely such a deal would have merited a press release, but there was no such release that I could find. The UW2.1.2 and 2.1.3 updates do not place SCO copyright notices on the core UNIX code; and UW7 has the tell-tale copyright notices which still list Novell as the copyright holder of contributions prior to 1996.

As an aside, Amendment 1 also says:

"1.2 (d) Asset Transfer and Transfer Taxes. Notwithstanding any other provision of this Agreement, the Assets shall remain the property of Seller until expeditiously delivered to Buyer in the manner and at the locations prescribed as follows in this Section 1.2(d), or as subsequently agreed in writing."

and then makes provision for delivery of physical source code but no specific arrangments for transfer of copyrights. This does strongly indicate that any copyright transfers were to be enacted by separate writings from the APA itself.

What, then, was the purpose and motivation behind the amendment?

The trademark patch

Firstly, the original APA gave as excluded assets:

"All copyrights and trademarks, except for the trademarks UNIX and UnixWare."

This apparently gave oldSCO the UNIX trademark. Except this was obviously wrong, since the UNIX trademark had been given to the Open Group. So this clause had to change. Also, oldSCO bought a business that sold many products - the UnixWare trademark alone might not cover them all. Clearly, Novell had to sell oldSCO the trademarks it needed to conduct the business.

That would appear to be the prime mover behind this part of the Amendment. As we see elsewhere, there is nothing in oldSCO's behaviour around this time to indicate that it thought it
owned the UNIX copyrights (and thus would want the APA "brought into line")

However, given that oldSCO was an existing UNIX licensee of an older version (not SVR4), it wasn't clear whether they could rely on that license alone to carry on the business of selling UnixWare. There might be the odd bits of UnixWare that couldn't be counted under the SysV license. All the above combine to yield the final catchall language:

"All copyrights and trademarks, except for the copyrights and trademarks owned by Novell as of the date of the Agreement required for SCO to exercise its rights with respect to the acquisition of UNIX and UnixWare technologies."

What are those rights? To refer blindly to the start of the APA is inadequate since it introduces a hopeless circularity:
SCO rights = All rights - Patents - (Copyrights - (Copyrights needed for SCO rights, which are.... oops))

APA Amendment 1 gives a hint, though, when it says
"..as may be incidentally involved through its rights to sell and license UnixWare software or the Merged Product.."

How did oldSCO describe the transaction?
"In fiscal year 1996, SCO acquired the UnixWare(R) and UNIX System V Release 4 source-license business from Novell, Inc."

[Another point. oldSCO were to be given those copyrights required to exercise their rights. UnixWare contained NetWare code, yet oldSCO did not require ownership of the NetWare copyrights to develop and sell UnixWare. Why, therefore, should they require ownership of the ancient UNIX and System V copyrights?]

The Real Point of the Amendment?

Secondly, there is more to Amendment 2 than this oft-discussed clause. The bulk of the amendment creates arrangements for royalty buyouts of System V: arrangements whereby both oldSCO's and Novell's permission is required. Why might this have come to the fore? Presumably because in the two previous years there had been two royalty buyouts associated with System V:

"The increase from fiscal 1995 to fiscal 1996 was attributable to a one-time $19 million paid-up royalty recognized in the sale of UNIX technology to SCO in fiscal 1996. The decrease in fiscal 1995 compared to fiscal 1994 was due to a one-time fully paid license for UNIX technology sold to Sun Microsystems for $81 million in fiscal 1994."

It is worth pointing out that this $19m royalty was not mentioned as part of the original deal between Novell and oldSCO. It also strikes me as unlikely that any payment which bought a copyright outright would ever be described as a royalty payment. A "one-time $19 million paid-up royalty" sounds more like a "right[] to sell and license".

Amendment 2 states that
"Novell may execute a [System V royalty] buy-out ... without any approval or involvement of SCO, ... if: (i) SCO ceases to actively and aggressively market SCO's UNIX platforms.."

That seems to say that Novell could seek to generate revenue from royalty buy-outs if oldSCO lost interest in UNIX. This reads not as a right granted to Novell, but as a right held but restrained as long as oldSCO "actively and aggressively" marketed UNIX.

So, the infamous clause in Amendment 2 was not its raison d'etre, it seems. Rather, Amendment 2 could have been drafted primarily to formalize arrangements for subsequent royalty buyouts, like IBM's "Amendment X", and the opportunity was taken to fudge some incorrect wording at the same time.

Conclusion

Based on the above publicly available evidence, which -- being contemporaneous -- is the least likely to be coloured by today's agendas of the parties involved, in my opinion, the deal between oldSCO and Novell was most likely as follows:

  • Novell sold the physical assets, reseller channel and information related to the UnixWare business to oldSCO and was given oldSCO stock in return. This was part of an overall strategy whereby Novell, HP and oldSCO would co-operate on driving forward the Unix platform.
  • oldSCO were given every right they needed to conduct the business -- the trademarks, and the right to develop and license the UnixWare code as they saw fit.
  • Novell retained ownership of the copyrights and patents, both so as to retain a revenue stream from royalties and for its internal needs.
  • Because Novell retained such broad rights to UNIX, oldSCO needed assurances that Novell would not undermine their business. Thus, Novell was contractually bound not to create new System V licensees, not to try to "sell" System V in general, and so forth.
  • In return, Novell needed assurances that oldSCO would not undermine the System V royalty stream by allowing licensees to buyout their System V licenses, or by harassing the licensees. Thus, Novell retained far-reaching powers of waiver with respect to the old licenses, and it was agreed that royalty buyouts needed both parties' approval.
  • oldSCO negotiated a royalty buyout in respect of its existing System V licenses, so that it could create the merged product (UnixWare 7) and sell it without paying any royalties to Novell.


UPDATE:

An enterprising Groklaw reader, Sean Lynch, used his research skills to contact Michael Dortch, mentioned in the article, who has some remembrances to add to the picture. He has given us permission to publish the email, which confirms that the article is "essentially accurate and correct" and that to the best of his knowledge, "SCO only purchased from Novell UNIX System licensing rights and the UnixWare business":

Thanks for your e-mail. I must say at the outset that I was initially surprised to see a quote from "UnixWare/OpenServer Watch" in a current e-mail. It seems that some artifacts never die online.

In any event, yes, I am the Michael Dortch who was the editor of that newsletter at the time the piece containing the quote referred to in the Groklaw article was published. I created that newsletter while at UnixWare Technology Group (UTG), a trade association of UnixWare (and, later, as I recall, OpenServer) resellers and other supporters. I was "chief evangelist" for UTG, recruited by its founding president and CEO, Lawrence Lytel, in 1994. (I am now a principal business analyst at Robert Frances Group (RFG), providers of advice and counsel to IT executives and their teams and colleagues. In this role, my colleagues and I have also been following closely and striving to untangle the details of the "Novell-SCO spat," as the Groklaw article so charmingly describes it.)

Yes, UTG and I were contacted by Grant Bird, then Director of Branding at X/Open, predecessor to today's Open Group. As it says in the issue of "UnixWare/OpenServer Watch" from which the Groklaw article extracted my quote, X/Open produced and "owned" the then-"official" guide to proper use of terms such as "UNIX System," and I had misused some of those terms in a previous issue of the newsletter. It was my discussions via e-mail and telephone with Grant that led to the apology and commitment from which the Groklaw article quote was extracted.

As I recall, my discussions with Grant focused solely on proper use of terms, not ownership of the intellectual property described by those terms. However, I do have some thoughts and recollections on that subject as well.

UTG was formed to help Novell promote UnixWare, and was initially populated largely by Novell UnixWare partners such as Unisys. As I recall, Novell was the primary initial financial supporter of UTG, apparently intending to encourage collaborative marketing among UnixWare partners as well as interoperability among their various respective UnixWare and UNIX System offerings.

HP was also prominently involved; representatives from HP and what you refer to as "oldSCO" made a joint presentation to a UTG member meeting held on March 27, 1996 in Japan, for example. At that event, oldSCO said it had hired more than 200 former employees of Novell and "USL," which was the old AT&T UNIX System Laboratories from which, as I recall, Novell bought the rights to UNIX System V. In any event, oldSCO said the "Next Generation OS" being developed would be based on "SCO's and HP's 3 products: UnixWare, OpenServer, and HP-UX." (FYI, I parted company with UTG in July 1996, and the organization itself was dissolved shortly thereafter. As I recall, there was fairly substantial doubt that HP was really more interested in collaborating on a "Next Generation OS" than in promoting HP-UX as that solution. There was also doubt among UTG's former members that SCO could really lead a charge toward such an OS without full support from HP and/or Novell.)

In any event, based on my recollection of events at the times mentioned in the articles to which you referred in your earlier e-mail, I believe the Groklaw article's interpretation of both my quote and the events at the time is essentially accurate and correct. To the best of my knowledge, as it says in my quote, SCO only purchased from Novell UNIX System licensing rights and the UnixWare business. Also, Novell did in fact continue to work on and champion UnixWare for some time after that purchase SCO was made final.

The vast majority of RFG clients are IT executives at large enterprises. Many of these use or are seriously considering using Linux and other technologies potentially affected by the labyrinthine legal machinations of "newSCO." As RFG said in a March 2004 analysis, "Is SCO At the Tipping Point?," "SCO's case continues to disintegrate, and proving its claims against IBM will be extremely difficult. Until and unless SCO is able to do so, RFG does not see value in paying SCO protection money just to use Linux. ...IT executives should not fall prey to SCO's scare tactics, and should instead continue to focus on the ultimate values and risks involved in each platform decision made as part of an application deployment."

I hope this is helpful, and appreciate your contacting me. Please feel free to quote from the above text in whole or in part, as long as any such quotes are made verbatim and include appropriate attribution. Also, feel free to contact me again with any other questions or comments you may have on this still-fascinating topic.

Cheers,

Michael Dortch
Principal Business Analyst
IT Infrastructure Management Practice Leader
Editorial Director
Robert Frances Group
"Business Advisors to IT Executives"


1 From the New York Times article, about the trademark:

IT was less than four months ago that Novell Inc. acquired Unix System Laboratories from A.T.& T. in a stock swap valued at about $320 million. Within the next few weeks, Novell intends to give the Unix trademark away. Bizarre? Not in the context of Unix, the software system with a troubled past.... Still, Novell, which acquired the Unix trademark when it bought Unix System Laboratories, hopes to overcome the industry fragmentation. Novell means to give away the Unix brand name and responsibility for maintaining the Unix specifications to an independent organization, most likely the X/Open Company, a London-based consortium of 14 hardware and software companies that was founded in 1984 to promote standardized approaches to Unix. What Novell is offering is the ability for any company to call a product Unix if it meets the basic specifications maintained by X/Open. The hope is that "Unix" could become a stamp of credibility, just as the "Intel Inside" stamp is now being used in the personal computer business. Among the Unix specifications is a common set of application programming interfaces -- the links between Unix and individual application programs -- meaning a program written for one version of Unix should more easily be able to run on others.

But Novell, which also intends to continue marketing its own flavor of Unix, called Unixware, has not had an easy time selling its vision of unity to the industry. "Discussions of the plan are problematic at best," said Mike Azzara, editor of Open Systems Today, a trade publication. "Novell is also now at the vortex of some intensely competitive market share battles involving many of the same companies that it hopes to cooperate with on the trademark issue."

NOVELL had planned to announce its Unix giveaway at an industry trade show late last month, but it ran into difficulty getting other major Unix vendors to agree on the details. The company scuttled the announcement at the last minute. Other vendors, such as the International Business Machines Corporation, the Hewlett-Packard Company, Sun Microsystems Inc. and the Santa Cruz Operation, said they were concerned that Novell was attempting to make its Unixware the de facto standard.

So that's why they decided to transfer the trademark, to quell the UNIX natives, who were unhappy at Novell's purchase.

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