Novell Quotes AT&T on Derivative Works 354
grendelkhan writes "Novell has released their latest correspondance with the litigous bastards ordering them to stop the lawsuit by noon tomorrow, and clarify what the SVRX licensing agreements with AT&T meant regarding derivative works. The letter quotes AT&T from the April '85 issue of $echo as stating that they 'claim no ownership interest in any portion of such a modification or derivative work.' So much for the ladder rung analogy."
And reader highwaytohell links to today's CRN article in which Eben Moglen suggests that the SCO/Linux lawsuit cannot move ahead "until SCO resolves its dispute with Novell. And regardless of which company prevails in court, he said, customers won't have to pay any company for a license fee since both claimants--SCO and Novell--have distributed the Linux code under the GPL. Once again, SCO have no comment."
Hate the PDF? (Score:4, Informative)
Plaintext version of PDF (Score:5, Informative)
General Counsel
The SCO Group
355 South 520 West
Lindon, UT 84042
Re: Sequent Computer Systems
Dear Mr. Tibbitts:
On May 29, 2003, SCO sent a letter to Sequent Computer Systems providing notice that it would terminate Sequent's SVRX license agreement as of September 2, 2003 if Sequent did not remedy certain alleged breaches of the license agreement. On August 11, 2003, SCO sent another letter to Sequent purporting to terminate Sequent's SVRX license agreement. IBM, on behalf of Sequent, responded to these letters by letter of August 14, 2003.
As it has with IBM and other SVRX licensees, SCO appears to be taking the position that code developed by Sequent, or licensed by Sequent form a third party, which Sequent incorporated in its UNIX variant but which itself does not contain proprietary UNIX code supplied by AT&T under the license agreement betwee AT&T and Sequent (Sequent Code), must nevertheless be maintained as confidental and may not be contributed to Linux. As we have said before, SCO's position defies both logic and the terms of the SVRX license agreement.
SCO cites, as support for its position, section 2.01 of Sequent agreement, which, like other SVRX licenses, provides as follows:
Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.
As we have said, however, this provision merely confirms that AT&T retained ownership of its code even if it was incorporated in a derivative work, and does not purport to impose confidentiality or use restrictions on Sequent Code.
In fact, SCO's interpretation of 2.01 is plainly contrary to the position taken by AT&T, as author of and party to the SVRX licenses. AT&T clarified the meaning of section 2.01 in its $ echo publication, which AT&T described as its own newsletter to reach all UNIX System V licensees through one defined medium and keeps them abreast of any product announcements, policy changes, company business and pricing structures.
Specifically, in an edition of $ echo dated April 1985 (the same month that the Sequent license agreement was signed), AT&T announced that changes would be made to hte SVRX license agreement to clarify ownership of modifications or derivative works prepared by a licensee. AT&T said this and other announced changes were in response to direct feedback from AT&T licensees and [were] intended to make the contracts more responsive to the needs of licensees. AT&T then followed up by adding to section 2.01 a sentence clarifying that AT&T claims no ownership interest in any portion of such a modification or derivative work that is not part of a SOFTWARE PRODUCT. Even more clearly, the August 1985 edition of $ echo explained that this sentence was added to assure licensees that AT&T will claim no ownership in the software that they developed - only the portion of the software developed by AT&T. Copies of the April and August 1985 editions of $ echo are enclosed for your convenience.
For these reasons, and the reasons stated in our October 7, 2003 letter to you about IBM-developed code, SCO's position on Sequent Code is unsupportable.
Under Section 4.16(b) of the Asset Purchase Agreement, Novell retains the right at Novell's sole discretion and direction, to require SCO to amend, supplement, modify, or waive any rights under, or...assign any rights to, any SVRX License to the extent so directed in any manner or respect by [Novell]. That section further provides that to the extent SCO shall fail to take any such action concerning the SVRX Licenses as directed by Novell, Novell shall be authorized, and hereby is granted, the rights to take any action on [SCO's] own behalf.
Accordingly, pursuant to Section 4.16(b) of the Asset Purchas
Re:www.sco.com (Score:3, Informative)
Re:SCO.com down (kinda) (Score:5, Informative)
Re:Meanwhile, back on the western front... (Score:5, Informative)
Moreover, according to the case law I've seen presented on Groklaw, it looks like SCO's theory of derivative works is unreasonable, to say the least.
Mind you, I'm not a lawyer, this isn't legal advice, etc. but this new evidence from Novell is pretty well nailing down any last avenues of escape SCO might have hoped to have.
Honestly, SCO is totally screwed with respect to the lawsuits right now... I'm just wondering if they still have anything else up their sleeves? It's been rather apparent that they were screwed or going to be screwed for some time now, so they might have made contingency plans which may or may not need to be delt with... (e.g. what happens if they suddenly assign all their rights to another company or something?)
Re:litigous bastards? (Score:5, Informative)
Re:Huh? (Score:4, Informative)
Try it with a dash (Score:1, Informative)
and you get a link to a working SCO Server
Re:I've got some sad news (Score:2, Informative)
sco.com [sco.com] is up
Sigh. (Score:2, Informative)
1. Such right to use includes the right to modify such SOFTWARE PRODUCT and to prepare derivative works based on such SOFTWARE PRODUCT, provided the resulting materials are treated hereunder as part of the original SOFTWARE PRODUCT.
To translate: Derivative works based on such SOFTWARE PRODUCT can only be licensed to people who have licenses to the original SOFTWARE PRODUCT.
2. the August 1985 edition of $ echo explained that this sentence was added to assure licensees that AT&T will claim no ownership in the software that they developed
To translate: AT&T doesn't own those derivative works -- they're simply restricting licensees' ability to distribute derivative works.
Slashdot is supposed to be News for Nerds, not Propaganda for Nerds. There are three sides to this story: SCO's side, the anti-SCO side, and the truth. Only one side is appearing anywhere on slashdot, and it isn't the truth.
Wake up guys: Blind cheerleading isn't going to get Linux anywhere. The only way Linux can improve is if people are willing to accept that there might, just possibly, be something wrong with it.
Re:Novell isnt a Utah company (Score:1, Informative)
Novell is a Utah company because that is their primary base of operation, or headquarters (Provo). In a legal sense, they are a Massachusetts company because they filed the legal papers there to form the company.
Re:Meanwhile, back on the western front... (Score:5, Informative)
Full disclosure: I work for the IBM Software Group, which gives me some authority to state that our software sales aren't "a drop in the ocean". Our 2003 annual report isn't quite ready yet but look at the 2002 figures:
Total sales - $81.186 billion
Software sales - $13.074 billion
http://www.ibm.com/annualreport/2002/fr_
Not exactly trivial, is it? If I remember correctly, counted as a software company we'd be like the 2nd or 3rd largest in the world. Only MS and maybe Oracle/SAP play in that arena.
12:00 MDT != noon (nitpick) (Score:3, Informative)
12:00 MDT = 11:00 MST
Therefore, per Novell's letter, SCO has until 11:00 tomorrow.
I know, I know... what does it really matter...
I run litigiousbastards.com (Score:3, Informative)
Re:Novell quotes $echo as a legal reference??? (Score:1, Informative)
If you're going to try... (Score:4, Informative)
Re:They bought the "Linux license" from SCO (Score:3, Informative)
Re:Meanwhile, back on the western front... (Score:5, Informative)
AC: "the only copyrights SCO claims are to sysV unix (and some older unices that don't matter). They also have contractual rights to *derivative works* made from sysV. IBM's AIX is such a derivative work, and IBM cannot release it without SCO approval - for sure they can't turn AIX into GPL code."
This is actually not correct, though you're at least in the right ballpark. SCO claims all copyrights for all UNIX and UNIXWARE. Including, in SCO's opinion System V. This language does come from the APA.
Unfortuantely, for SCO, there are a *lot* of clauses in the Novell-OldSCO Purchasing Agreement that *exclude* most rights in System V. About the only right SCO has in Sys V, as far as I can read into the APA, is the right to collect Sys V licensing fees for Novell, send dunning letters for unpaid bills, and to be at the table for discussions over Sys V license buyouts. And even the latter is questionable.
Whether or not AIX is a "derivative work" is debatable, and largely turns on the semantics by which you define "derivative". What isn't debatable is that those portions of AIX that *include* Sys V code are "derivative", as that meets the minimal, least general, definition of "derivative". SCO has so far failed to identify *any* Sys V code in AIX (or Dynix) that has been contributed to Linux. They have only claimed to identify original AIX & Dynix code that have been contributed to Linux, which isn't covered by the contract according to ATT's old statements.
So, we probably shouldn't say that AIX is a "derivative work" of Sys V, although some *portions* of it may be.
It's like saying Linux is a derivative work of BSD, which we all know it isn't, even though we also all know that some files in Linux are derived from BSD.
Re:Novell quotes $echo as a legal reference??? (Score:4, Informative)
Novell is telling the World that public company by the name IBM has been given green light to use their own code (JFS, EVMS, ETC), because the assets transfer to SCO allows Novel to Waive any right SCO may claim to their licensees.
Basically, they are overruling SCOs licence, making it clear they have the right to do so, and ordering SCO to cease the trial, because the are claming a right that has been clarified they do not have and never ever had.
So basically the _hole point_ of the Novell letter, is letting ANY investor all over the world, that IBM has already won the trial, and that there is no posibility they may lose $5000 billion, not even a 0.000001% chance.
So calling them unprofessional makes you look silly at best.
Re:Meanwhile, back on the western front... (Score:5, Informative)
Well, IBM did cite a ruling (Litchfield vs. Spielberg), that someone on groklaw decrypted as : "the derivated work must contain parts of the orginal."
Applyed to this case : Just because AIX is derivated from SysV and Linux contains code that is also in AIX does not mean that Linux is a derivate of SysV. To be a derivate of SysV, Linux has to include SysV code.
On the other hand, SCO claims now that this case is not about SysV code in Linux, but AIX/Sequel code in Linux. So if the judge accepts the definition of the Spielberg ruling, SCO has no case left. (IANAL)