MathFox

July 17, 2003

Having read your excellent piece on IBM's defences I took a look at the original (AT&T) licences and whether they specified a venue. No venue is mentioned, but the contracts specify that the laws of the state of New York apply. http://www.sco.com/scosource/ExhibitA.qxd.pdf section 7.13.

In another exhibit http://www.sco.com/scosource/ExhibitD.qxd.pdf California law is deemed applicable. (for other code?) Could this be the reason the case is inappropriate for Utah state court?

5:02:45 AM

Sanjeev Sharma

July 20, 2003

Are you sure about this >>> So the only remedies SCO could ask for, under this affirmative defense, would be that IBM return or destroy all of AIX and stop distributing it and anything else specifically spelled out in the contract The enormous money dam <<< The way I read exhibit D is that SCO can only ask IBM to destroy the "REFERENCE PRODUCT", this being the SysV source code. And in fact all the talk about audits pertains only to "REFERENCE PRODUCT", NOT to AIX. Regarding AIX it seems clear to me that after January 31 2001 IBM was free to do anything it liked with AIX, even lift whole sections of code into other products. That part is in paragraph 6, specifically towards the end >>> The second to last sentence of paragraph 9 of the February 1, 1985 amendment to SOFT-00015is modified by deleting the words: "and employees of Licensee shall not refer to the physical documents and materials comprising Software Products subject to this Agreement when they are developing any such products or sevices or providing any such service. <<<

Thereby giving IBM the right even to copy blocks of code wholesale from AIX to anywhere they wanted to.

From this it's clear to me that after Jan 1 2001 IBM was completely free to do ANYTHING it wanted with AIX, ANYTHING.

11:13:33 AM

Sanjeev Sharma

July 20, 2003

I'll try this again, perhaps properly formatted this time. Apologies all around.
Are you sure about this
>>> So the only remedies SCO could ask for, under this affirmative defense, would be that IBM return or destroy all of AIX and stop distributing it and anything else specifically spelled out in the contract The enormous money dam <<<

The way I read exhibit D is that SCO can only ask IBM to destroy the "REFERENCE PRODUCT", this being the SysV source code. And in fact all the talk about audits pertains only to "REFERENCE PRODUCT", NOT to AIX. Regarding AIX it seems clear to me that after January 31 2001 IBM was free to do anything it liked with AIX, even lift whole sections of code into other products. That part is in paragraph 6, specifically towards the end

>>> The second to last sentence of paragraph 9 of the February 1, 1985 amendment to SOFT-00015is modified by deleting the words: "and employees of Licensee shall not refer to the physical documents and materials comprising Software Products subject to this Agreement when they are developing any such products or sevices or providing any such service. <<<

Thereby giving IBM the right even to copy blocks of code wholesale from AIX to anywhere they wanted to.

From this it's clear to me that after Jan 1 2001 IBM was completely free to do ANYTHING it wanted with AIX, ANYTHING.

11:27:59 AM

Sanjeev Sharma

July 20, 2003

Another addendum, regarding SCO's rights over AIX.

Exhibit C, paragraph 12.

12. Regarding Section 5.01, we agree that neither you nor your AUTHORIZED COPIERS or DISTRIBUTORS will be required to provide or disclose the identity of customers to us or our accredited auditing representatives.

From my reading of the original contracts and amendments it seems a clear concerted, deliberate action on IBM's part that AT&T rights end<ed> at SysV source and DID NOT EXTEND to AIX binaries or AIX source.
If SCO does not even have the right to know who's running AIX, how can they possibly claim a right to have all copies of AIX destroyed?

11:36:42 AM

July 29, 2003

Sanjeev,

Your point about Reference Product is correct. I goofed. I must be absorbing SCO's derivative code argument. If the court did, though, it still couldn't ask for more than what I wrote, from what I see.

4:23:13 PM