Ancient UNIX Released Under What Terms?

Ancient UNIX Released Under What Terms?

By Pamela Jones
Groklaw

August 23, 2003

On the issue of whether Caldera released the Ancient UNIX code under an open source license or "only for noncommercial use", and only for 16-bit, as Sontag and Stowell say [ http://www.linuxjournal.com/article.php?sid=7089&mode=thread&%20order=0&thold=0 ], let's look at the evidence. There may be a reason for them to be confused on the first point, but no justification in the history for claiming 16-bit only.

First, here is what is being said:

"Blake Stowell, Director of Public Relations for The SCO Group, said this week that SCO's 2002 letter that released old UNIX versions did not offer free, open-source terms but included a non-commercial use restriction. The company then was called Caldera.

"'I do not dispute that this letter was distributed and that Caldera at the time allowed 16-bit, non-UNIX System V code to be contributed to Linux for non-commercial use', Stowell wrote in an e-mail interview.

"The text of the letter, sent January 23, 2002 by Bill Broderick, Director of Licensing Services for Caldera, in fact makes no mention of 'non-commercial use' restrictions, does not include the words 'non-commercial use' anywhere and specifically mentions '32-bit 32V Unix' as well as the 16-bit versions.

"When asked for clarification on the 'non-commercial' assertion, Stowell replied by e-mail, 'That is what I was told by Chris Sontag.'"

Now I know for sure that SCO isn't reading Groklaw in detail, or they'd know better than to claim only 16-bit and only noncommercial. I wrote about this on July 14, so they could have saved themselves some embarrassment, had they read what I wrote about this very subject.

They did release it under a noncommerical use license, and they also later released it under a BSD-like license, as we saw in the letter. Neither license was restricted to 16-bit only. I found proof on this subject, which I sent to Dennis Ritchie back in July, because he had a broken link on his UNIX history page, which my research made it possible to fix, despite SCO having removed some historical materials about the Ancient UNIX release, and despite the material no longer being available through Google or Wayback.

I think it's worth repeating my research now, because it is dispositive, in my opinion, and because I expect SCO to try to produce some "evidence" of their contention, and it is possible to have the complete picture, despite all the disappeared material on their site so as to be able to answer them fully if they do. Not every detail may be helpful to the good guys, and I can't evaluate that not knowing for sure all the details of where the code came from, but truth is truth, so here goes.

First, you might like to read this material [ http://linux.oreillynet.com/pub/a/linux/2002/02/28/caldera.html ], from "Why Caldera Released Unix: A Brief History" by Ian F. Darwin, 03/01/2002:

"Our strangest dreams sometimes take on a reality of their own. In January, Caldera, the latest owners of the "official" Unix source code, decided to release some of the older versions (up to "V7" and "32V") under an open source license. While not as significant as it would have been, say, ten years ago, it is nice that everyone now has access to the code that first made Unix popular, and that led to the development of the 4BSD system that underlies FreeBSD, NetBSD, OpenBSD, and Apple's Darwin (which in turn underlies Mac OS X). Since I was active in the computer field through almost all the years of Unix's development, I'd like to comment briefly on the Caldera announcement in its full context. . . .

"Things do tend to come full circle. It was Caldera that, on January 23 of this year, disencumbered the entire source code of Unix, up to and including the Seventh Edition (1979) and its VAX port "32V" from which BSD had started the development that led to 4.0BSD. (32V is basically V7, minus some bits that were written in the PDP-11 assembly language, and the remainder was adapted to work on the VAX.) This seems to mean that BSD Unix is, at last, fully disencumbered, even the few parts that couldn't be used in the various BSD systems over the years due to residual AT&T copyrights."

Next, here [ http://cm.bell-labs.com/cm/cs/who/dmr/complinks.html ] is Mr. Ritchie's web site on UNIX history. And here [ http://www.aplawrence.com/News/sconews0051.html ] is a paragraph from the April 18, 2000 press release from Caldera that mentions the noncommercial use, which is what SCO was relying on, thinking perhaps that the later letter had disappeared, or perhaps they didn't know about it, ha ha:

"SCO is releasing additional source code for reference use in an effort to improve industry standard Open Source tools and technologies. These technologies will be available to download in the next few weeks. Additionally, SCO has simplified its 'Ancient' UNIX program and waived the $100 processing fee. Anyone will be able to log onto the SCO web site and download historically preserved UNIX code for educational and non-commercial use."

So far, it seems to back up what SCO is saying. But if you read this [ http://minnie.tuhs.org/pipermail/tuhs/2003-March/thread.html#405 ] discussion thread, you find folks, including Dennis Ritchie, recalling and someone eventually producing a private email [ http://www.lemis.com/~grog/UNIX/ ] from Caldera about this BSD-like release, but the worry was that a private email might not be enough to prove they really did release Ancient UNIX under the BSD-like license, and some anticipated that SCO might deny it, which they did just try to do. Greg Lehey, who had a copy of the original license, not the later, BSD one, posted some of the terms of the original license here [ http://minnie.tuhs.org/pipermail/tuhs/2003-March/000399.html ], which I reproduce in part:

"2.1 (a) CALDERA INTERNATIONAL, INC. grants to LICENSEE a personal, nontransferable and nonexclusive right to use, in the AUTHORIZED COUNTRY, each SOURCE CODE PRODUCT identified in Section 3 of this AGREEMENT, solely for personal use (as restricted in Section 2.1(b)) and solely on or in conjunction with DESIGNATED CPUs, and/or Networks of CPUs, licensed by LICENSEE through this SPECIAL SOFTWARE LICENSE AGREEMENT for such SOURCE CODE PRODUCT. Such right to use includes the right to modify such SOURCE CODE PRODUCT and to prepare DERIVED BINARY PRODUCT based on such SOURCE CODE PRODUCT, provided that any such modification or DERIVED BINARY PRODUCT that contains any part of a SOURCE CODE PRODUCT subject to this AGREEMENT is treated hereunder the same as such SOURCE CODE PRODUCT. CALDERA INTERNATIONAL, INC. claims no ownership interest in any portion of such a modification or DERIVED BINARY PRODUCT that is not part of a SOURCE CODE PRODUCT." [emphasis added]

That last is an interesting tidbit, don't you think? Despite this being the more restrictive of the two licenses, no ownership interest in derivative code is claimed. There is such a disconnect between old SCO and now SCO. It's all very 1984.

In any case, they later rereleased under the BSD-like license, which is even looser in its terms, as you saw in the letter that flustered Mr. Stowell, and, if you haven't already, you can read it here [ http://www.tuhs.org/Archive/Caldera-license.pdf ] . It's a pdf.

Now, on the 16-bit versus 32-bit issue, according this TUHS thread [ http://minnie.tuhs.org/pipermail/tuhs/2003-March/000405.html ], the old license, which you can read here [ http://minnie.tuhs.org/PUPS/sco_license.txt ], said this:

"The SOURCE CODE PRODUCTS to which SCO grants rights under this Agreement are restricted to the following UNIX Operating Systems, including SUCCESSOR OPERATING SYSTEMs, that operate on the 16-Bit PDP-11 CPU and early versions of the 32-Bit UNIX Operating System with specific exclusion of UNIX System V and successor operating systems:

"16-Bit UNIX Editions 1, 2, 3, 4, 5, 6, 7
"32-bit 32V" [emphasis added]

In this license, only System V was excluded. As was pointed out in the online conversation, "This implies that System III on the PDP11 is covered by this license, as SCO has the legal rights to System III and it is a SUCCESSOR OPERATING SYSTEM." The later BSD license had this clause, in contrast:

"The source code for which Caldera International, Inc. grants rights are limited to the following UNIX Operating Systems that operate on the 16-Bit PDP-11 CPU and early versions of the 32-Bit UNIX Operating System, with specific exclusion of UNIX System III and UNIX System V and successor operating systems:

"32-bit 32V UNIX
"16 bit UNIX Versions 1, 2, 3, 4, 5, 6, 7" [emphasis added]

Here, System III is excluded. Neither license was for 16-bit only. Another discovery of note, Warren Toomey on this page [ http://minnie.tuhs.org/pipermail/tuhs/2003-March/000430.html ] mentions that despite the earlier, more restrictive license, you could easily access System III source code directly anyway, with no click-through license, on Caldera's web site, at www2. caldera.com/offers/ancient001/sysIII/ , not that he recommended it. That was in March of 2003.

Catch that date? March of 2003, the same month the lawsuit was filed, you could access, without any click-through license, System III, according to him. The link no longer works, and I am listing it here so as to make the history complete. This would seem to speak to the trade secrets issue, evidence that SCO was careless in protecting their "trade secret" on System III, regardless of the license. And that their elaborate hide-the-code-because-of-contract-confidentiality-clause cloak and dagger behavior was, well, silly and unnecessary at best. Toomey here says [ http://minnie.tuhs.org/pipermail/tuhs/2003-March/000435.html ] that he had emailed SCO about it "many months ago" (this was written in March of this year) "but they haven't fixed it yet."

Someone else on the thread posted this link [ http://www.oreilly.com/catalog/opensources/book/kirkmck.html ], where you find the book "Open Sources: Voices from the Open Source Revolution", including this chapter, "Twenty Years of Berkeley Unix --From AT&T-Owned to Freely Redistributable" by Marshall Kirk McKusick, who was involved in the BSDI lawsuit, which briefly covers the early history of UNIX, including the lawsuit. If you read it, you'll see that if SCO is planning on retrying that case, they will likely lose.

So, that's the explanation for the conflicting stories. If SCO is trying to erase uncomfortable history, they will find it a losing battle. There are too many people who care and too many still alive who helped write UNIX and remember everything. A lot of them have material handy on old computers down in the basement and in paper files in the attic, as well as in their memories. And then there's people like me, who just keep digging and digging, like a patient little mole, despite disappearing evidence, with the help of the internet, which doesn't forget, so that after SCO speaks, we can tell the world the truth.

12:02:30 PM