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APA's "Included Assets" Did Not List SVR4.2 - Research Project - Updated 4Xs
Saturday, March 20 2010 @ 02:48 PM EDT

A reader asks a question I can't answer, but maybe some of you can. In reading the APA [PDF][text], he noticed something odd. The schedule of "included assets", Schedule 1.1(a), doesn't include UNIX SVR4.2. Can you take a look with me? I'll show you what I've found so far.

Update: While I'm researching this topic, I came across something else about patents, which Darl McBride testified he never licensed. Aside from Microsoft, of course, who claimed they'd gotten a license to patents. And what I just found is this press release about SCOsource, dated January 22, 2003, which does in fact list patents:

SCO's patents, copyrights and core technology date back to 1969 when Bell Laboratories created the original UNIX source code. SCOsource will manage the licensing of this software technology to customers and vendors.

"SCO is the developer and owner of SCO UnixWare and SCO OpenServer, both based on UNIX System V technology," said Darl McBride, president and CEO, The SCO Group. "SCO owns much of the core UNIX intellectual property, and has full rights to license this technology and enforce the associated patents and copyrights. SCO is frequently approached by software and hardware vendors and customers who want to gain access to key pieces of UNIX technology. SCOsource will expand our licensing activities, offering partners and customers new ways to take advantage of these technologies."

But they had no Unix-related patents at all. Obviously people assumed they did, because Darl said SCO did.

Here's the list in the document of what was included:
A. UnixWare 2.0 as described in the UnixWare 2.0 Licensing Schedule and those products listed as "prior" products on such schedule (includes source code updates where appropriate - i.e. UnixWare product family).

B. UNIX SVR4.1 ES as described in the UNIX SVR4.1 ES Licensing Schedule and those products listed as "prior" products on such schedule.

C. UNIX SVR4.0 MP as described in the UNIX SVR4.0 MP Licensing Schedule and those products listed as "prior" products on such schedule.

D. Ancillary SVRx Products (a final list of which shall be developed by the parties prior to the Closing)

No SVR4.2. Isn't that odd? Later the APA lists the contracts relating to SVRX licenses, and you do find "UNIXx System V Release 4.2 MP, Intel386 Implementation" on the list, with three other types, International Edition, for example. So it wasn't a "future" version. Here's an article from 1992 about it, published in SCO Magazine. And the Open Group's history of Unix tells us that it was released in 1992, and that "In December Novell ships SVR4.2MP , the final USL OEM release of System V."

And Section 4.16(b) of the APA, listing licenses, has SVR4.2. But that's licenses, involving the royalty payments. And the included section lists "IV. All copies of Unix and UnixWare, wherever located, owned by Seller." But that's not the same as transferring ownership of anything but a copy of it, as I read it. I mean, if I contract with you to give you all copies I own of Microsoft Windows, I would collect all the boxes and hand them to you, but that wouldn't make you the owner of Microsoft Windows. Not even if I were Microsoft, I don't think.

Then in the excluded assets section, it specifically says anything not on the Schedule 1.1(a), the included assets, is not transferring.

I wonder how we could have read that a zillion times and never noticed? Next time one of the lawyers forgets something in the trial, let's empathize. I guess that's the lesson. But what is the explanation for it not being on the list? This is the only version this trial is supposedly about, I thought. The SCOsource Linux license was allegedly, according to SCOForum 2003's slide 26 [PDF], for a license to UnixWare 7.1.3. I wish I'd noticed that slide when they were debating what SCOsource was for. Judge Dale Kimball said [PDF] it was indemnification, which it was also, but the slide says:

Provides an end-user license for SCO's UnixWare 7.1.3 product for use in conjunction with any Linux offering - structured as a binary, run-only, per CPU license.
I guess this is what it means, that God is in the detail. Ah, the human condition. We can't ever get everything right. Not even judges. But my point is, wasn't the code comparison, one of them, SVR4.2?

I'm going to take a look at other versions of the APA and the later changes, but I thought I would put this out there, so you brainiacs can help me research. Because if it really isn't included, then even if Amendment 2 were deemed to have transferred the other copyrights, which I don't think it did anyway, but even then SVR4.2 wouldn't transfer.

Here's Amendment 1, dated December 6, 1995, where they in fact edited the included assets section, but they still didn't add 4.2. They added:

UNIX System V Release 4.2 European Language Supplement, Version 1

UNIX System V Release 4.2 MP Japanese Extension

Oh my. Signed by Duff Thompson and Alok Mohan. I can just see the next 7 years, with them and their buddies telling us it was left off by mistake, but their *intent* was that it should transfer, and they'll parade paralegals and best friends of CEOs to prove it, too.

Here's why Japan might have been handled differently, if you are curious, some local needs that were very different from the rest of the world. Here's the TLA, also signed by them. No 4.2. Here's Amendment 2. No change to included assets, signed by James Tolonen and Steven Sabbath on October 16, 1996. And here's the Bill of Sale, which says, "Seller does not sell to Buyer and Buyer does not purchase from Seller any interest in any of Seller's assets other than the Assets."

Finally, here's the Operating Agreement [PDF], which says Santa Cruz was to work on a merged product, with Novell providing some APIs and other things, and the merged product was to be based on just one product (UnixWare or OpenServer) to minimize the costs to produce it. The idea back then was to merge the two. And on page 2 it says UnixWare 2.1 ("Eiger") and (OpenServer Release 5.1 ("Comet") "will be used as the basis of the Merged Product." Might that be the reason no one put SVR4.2 on the list? I don't know. I know I hate finding things at the last minute, because you don't have time to thoroughly check every last detail, but perhaps some of you will be able to shorten the time by remembering things not immediately obvious from the documents. What am I missing?

Update: Take a look at Exhibit 9 to Tor Braham's Declaration. The exhibit is the term sheet, the business guy's understanding of the deal. It also does not list SVR4.2. Here's an intriguing paragraph:

Novell Proposal - Modified 9/10 (not reviewed with SCO): Novell feels that it is critical to satisfy Novell's UnixWare customer investments and therefore the above migration plan must be followed after the Comprehensive Agreement is signed. Therefore, in order to be assured that the plan is followed, Novell proposes that Novell have the option to similar rights and technology (as it existed on the effective date of this agreement) to additional third parties if the plan is not met by SCO. In addition, Novell proposes that if the Merged Product plan is not met, Novell will increase the NetWare related per copy fees (TBD).
Might it be that Novell retained whatever it thought it would need if SCO fell down on the job, particularly in light of Novell's fears for SCO's survival as a company? The "technology as it existed" would be SVR4.2. Might that be the explanation for retaining it? Plus, SCO was to merge UnixWare and OpenServer, so would it have needed SVR4.2? Might that explain the odd language of Amendment 2?

Update: And on the subject of need, a reader points out that Darl McBride testified that SCO only needed the copyrights for SCOsource, but the Hon. Dale Kimball ruled that the SCOsource licenses were not about SVRx copyright infringement, what does SCO need copyrights for? Here's what the judge ruled, and it was not appealed:

Because the SCOsource licenses cannot be construed to include a release of SVRX copyright infringement, the court does not find the licenses to be SVRX Licenses that generated SVRX Royalties to Novell under the APA.
So SCO doesn't need the SVRx copyrights for SCOsource either.

Here's the Open Group's Single Unix Specification History and Timeline [PDF], and you can see that 4.2 was released in 1992; 4.2MP in 1993.

Update: This might explain some things, an article about Caldera buying Unix assets:

The primary assets gained by Caldera in the transaction are the UnixWare product line and the source code to UNIX itself. Both have a long history, and to some extent the transaction returns UnixWare and UNIX to earlier roots in Utah.

UnixWare, as a viable commercial product, was born from the acquisition of UNIX Systems Laboratories (USL) and the UNIX source code by Novell, Inc. in 1993. UnixWare was the first version of UNIX based on the UNIX System V Release 4 (SVR4) source code for Intel platforms. (Other UNIX variants, such as SCO's products, predated UnixWare but were based on earlier versions of the UNIX source code.) SVR4, in turn, was the result of years of wrangling between proponents of earlier versions of UNIX and was an effort by AT&T, the original developer of UNIX, and Sun Microsystems to merge the System V and BSD lines of the family. That effort triggered considerable in-fighting within the commercial UNIX community and resulted in the formation of competing industry consortiums promoting different agendas.

That's from the artice "Caldera Buys UNIX" by Ralph Barker. It seems not to be on the Internet any longer, but I saved a copy years ago, and it was originally published on HP World News. There was a graphic HP let me use on Groklaw, which is why I saved the article. The article explained the separation of the code bases like this:
There were essentially three UNIX camps in the early 1990s: the SVR4 camp with the AT&T-owned USL and Sun leading the pack; the proponents of so-called Berkeley UNIX, 4.x BSD coming out of the computer science department at the University of California, Berkeley; and a group of vendors whose UNIX products were based on earlier versions of UNIX System V, including HP and IBM. Concerns over potential market advantages that might accrue to Sun as a result of the partnership with AT&T in developing SVR4, combined with substantial increases in the licensing fees for SVR4 being demanded by USL in an effort to make a profit from the OS, largely made the three-way split permanent. Although AIX and HP-UX have since adopted many of the features of SVR4, their respective code bases remain tied to earlier versions of System V that resemble BSD UNIX in many ways.
Here is the graphic that HP gave me permission to use, and you can see the HP-UX does not trace originally from SVR4.but got some elements, but they got the elements from SVR4 but I don't see 4.2, and not off of Caldera UnixWare. Just saying. And their article says IBM AIX was like HP's:

So I guess the question would be, who actually does own the copyrights? Sun is a contender. So is BSD.

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