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Some Caldera Contracts Are Online
Thursday, June 19 2003 @ 09:45 PM EDT

I went looking for any contracts online that might have derivative code clauses. This model corporate contract on Findlaw defines "derivative code" simply by copyright law:

""Derivative Works" shall have the meaning set forth in the United States Copyright Act, 17 U.S.C. Section 101, et seq." That would seem a normal definition.

Then I fell on this: Findlaw lists a number of older Caldera contracts on this page, dating from 1999 to 2000.

This contract, between SCO and Caldera in 2000, is interesting for the following clauses on the contract's pages 32 and 33, Clause 2.15 "Intellectual Property":

"(e) To SCO's Knowledge, no third party is infringing or misappropriating any of the SCO IP Rights....(g) The Contributing Companies and the Contributed Company Group have taken reasonable and practicable steps designed to safeguard and maintain the secrecy and confidentiality of, and its proprietary rights in, all material trade secrets or other confidential information constituting SCO IP Rights....To SCO's Knowledge, all development employees of the SCO IP Rights, and all other officers, employees and consultants of the Contributed Company Group have executed and delivered an agreement regarding the protection of proprietary information and the assignment to his/her employer or principal of the SCO IP Rights arising from the services performed by such persons, except where this absence of such agreement would not have a Material Adverse Effect on the Group Business."

In (h) of 215, it makes reference to a "SCO Disclosure Letter", which lists "license, sublicense, agreement or other permission pursuant to which SCO or the Contributed Business Group is entitled to use third party IP Rights (excluding shrink wrap licenses to commercially available software sold at retail) as of the date hereof, the absence of which would have a Material Adverse Effect on the Group Business that a third party owns and that SCO or the Contributed Business Group uses pursuant to a license, sublicense, agreement or other permission, and describes and identifies such license, sublicense, agreement or other permission (excluding shrink wrap licenses to commercially available software sold at retail)", but this letter was not online. Oddly, governing law state for that contract was to be NY and venue chosen was CA:

" 13.1 Governing Law; Venue.
"(a) Governing Law. The internal laws of the State of New York (irrespective of its choice of law principles) will govern the validity of this Agreement, the construction of its terms and the interpretation and enforcement of the rights and duties of the parties hereto, except that the fiduciary duties of the directors and managers of parties hereto and its Affiliates shall be governed by the law of the jurisdiction of such company's formation.

"(b) Venue. The parties agree that any dispute regarding the interpretation or validity of, or otherwise arising out of this Agreement, shall be subject to the exclusive jurisdiction of the California State Courts in and for Santa Clara County, California or, in the event of federal jurisdiction, the United States District Court for the Northern District of California sitting in Santa Clara County, California, and each party hereby agrees to submit to the personal and exclusive jurisdiction and venue of such courts and not to seek the transfer of any case or proceeding out of such courts.

"13.2 Assignment; Binding upon Successors and Assigns. None of the parties hereto may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto; provided, however, that the sale or other transfer of the stock of any Contributing Company shall not be deemed an assignment provided that this Agreement remains enforceable against the Contributing Company after such stock sale or transfer. Subject to the preceding sentence, this Agreement will be binding upon and inure to the benefit of the parties hereto and its respective successors and permitted assigns."

Caldera also has on the list of their contracts "GNU General Public License -Caldera Systems", which ends with these words:

" This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Library General Public License instead of this License."

This would indicate to me that when Caldera provided these contracts and license agreements to Findlaw, evidently in 2000, judging from the latest date, it included the GPL as one of the ones it knew it was utilizing.


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