Here is a scanned paper exhibit, a 1991 letter from O.L. Wilson to AT&T Bell Laboratories' Frank Kovacs, one of the 33 exhibits SCO attached to its Memorandum in Support of SCO's Expedited Motion to Enforce the Court's Amended Scheduling Order Dated June 10, 2004. Or perhaps I should say it's the memorandum in support of SCO's failed expedited motion to "enforce" the court's amendeded scheduling order. Our thanks to brooker for doing the transcript for us. This is brooker's first time transcribing, so I'll not only say thank you, I'll say thanks for volunteering to help.
It's a very strange letter. First, it's a letter to AT&T. AT&T needed a license from USO? I've missed something somewhere. Then there is no signature page. There are some egregious spelling mistakes and some typos too, but they are in the original. Could it be a draft of a letter, never sent? We know from Mr. Wilson's 2003 Declaration that he retired in 1991. I am only wondering here, but when you read this unfinished letter, I think you'll agree it invites questions.
At a minimum, if I were working on this case, I'd want to look at a lot of other Wilson letters to see if this is typical of his style. You'll note as well that there is a cutoff midsentence at the end of page three, and the sentence isn't finished anywhere. You skip directly to an attachment, which has, by the way, no spelling mistakes. That means there is no signature either. 1 Happily, Mr. Wilson is still living, and so he can answer all our questions.
If all you want is to buy time by raising issues that need looking into further, ideally by a jury, that makes this letter about perfect, from SCO's standpoint. I assume that they present it to the court to show, they think, that the letter contradicts his 2003 Declaration, in which he says says AT&T deliberately wanted to spread Unix on favorable terms to get Unix adopted broadly as a standard "by ensuring that UNIX System V ideas, concepts, know-how, methods and techniques would be widely known and understood by future programmers." The corollary to that adoption, of course, was that a lot of people got to see AT&T's source code, so that today, he says, "it is unlikely that there are many, if any, parts of the UNIX System V source code that could be said still to be confidential." Naturally, SCO doesn't want that to be true, so they submitted this partial letter to contradict. If it's the best they have, things aren't looking so good for SCO.
I've been thinking about educational licenses. IBM's license was commercial. But I noticed in the last article we transcribed, SCO's Memorandum in Opposition to IBM's Motion to Strike Materials Submitted by SCO in Opposition to IBM's Cross Motion For Partial Summary Judgment, in the second footnote, SCO mentioned that Andrew Tanenbaum (they don't mention his name there, but it's obviously who they mean) allegedly had an educational license and that his Minix was "based on and derived from" UNIX. The fact that Tanenbaum has said that isn't a bit true doesn't prevent SCO from making the allegation. That might explain why ADTI's Ken Brown went to the trouble of interviewing Tanenbaum but not Linus. Is it possible these dingbats plan on asserting that their elaborate derivative code theory gets its first ladder rung at Tanenbaum's Minix? I know it seems incredible, but can you see any other reason why they keep harping on educational licenses in connection with IBM? If that is their thinking, they are seriously doomed.
SCO wouldn't be that silly, would they? Well, would they?
*(Date stamped): Jun 18 1991
O. L. Wilson
UNIX Software Operation
Mr. Frank Kovacs
AT&T BELL LABORATORIES
Dear Mr. Kovacs:
Re: Licenses for specified UNIX Software Operations (USO)
SOFTWARE PRODUCTS, Letter Agreement Number ATT-452 [*or152?]
Upon your written concurrence as indicated below, USO will make available to you licenses for certain of USO's SOFTWARE PRODUCT under the terms of this Letter Agreement. Each such SOFTWARE PRODUCT shall become subject to this Letter Agreement on acceptance by USO of a Suppliment executed by you that identifies such SOFTWARE PRODUCT and lists the DESIGNATED CPUs therefor. The first Suppliment for a specific SOFTWARE PRODUCT shall have attached a Schedule for such SOFTWARE PRODUCT listing the fees payable by you for the applicable licenses. Any additional terms and conditions set forth in such Shedule shall also applywith respect to such SOFTWARE PRODUCT. Initially, Supplement(s) numbered 1 and 2 are included in and made part of this Letter Agreement.
Additional Suppliments may be added to this Letter Agreement to add additional SOFTWARE PRODUCTS (and DESIGNATED CPUs therefor) or to add or replace DESIGNATED CPUs for other SOFTWARE PRODUCTS covered by previous Supplements. Each such additional Suppliment shall be considered part of this Letter Agreement when executed by you, if required, and accepted by USO. Subject to the provisions of subparagraph (1) below, additional or replacement CPUs shall be deemed to be DESIGNATED CPUs on the date a copy of a SOFTWARE PRODUCT covered by a previous Suppliment is first put into use by you on such additional or replacement CPU, (Terms in capital letters that are set forth in this Letter Agreement are defined in Attachment A hereto.)
The licenses granted to you are to (i) use the SOFTWARE PRODUCT on DESIGNATED CPU(s) to modify such SOFTWARE PRODUCT and to make SUBLICENSED PRODUCTS based on such SOFTWARE PRODUCT, (ii) distribute such SUMLICENSED PRODUCTS internally and to other end-user customers, and (iii) permit access to SOFTWARE PRODUCT by your contractors and allow use of SOFTWARE PRODUCTS by your contractors on DESIGNATED CPUs, provided such access and use is exclusively for you in connection with work called for in written agreements between you and such contractors entered into before or at the time of permitting such access or allowing such use. Such written agreement, which you shall diligently enforce, shall be consistant with the following:
(1) Contractors shall agree to the same responsibilities and obligations and other restrictions pertaining to the use of SOFTWARE PRODUCTS as those undertaken by you under this letter agreement.
(page 1 of 4)
(2) When a contractor's work for you is completed, all copies of SOFTWARE PRODUCTS furnished to such contractor or made by such contractor and all copies of any modifications or derivative works made by such contractor based on such SOFTWARE PRODUCT shall be returned to you or destroyed, including any copies stored in any computer memory or storage medium.
(3) A contractor may not acquire any ownership interest in any modification or derivative work prepared by such contractor based on or using a SOFTWARE PRODUCT subject to this Letter Agreement unless and until such contractor also becomes a licensee of USO for such SOFTWARE PRODUCT.
The conditions under which such licenses are granted to you are as follows:
(a) You will not provide access to any copy of the source code of the SOFTWARE PRODUCT (including methods and concepts contained therein), in whole or in part, to anyone other than your organization's employees who have a need to know.
(b) Notwithstanding the provisions of the paragraph above, you may distribute copies of a SOFTWARE PRODUCT, either in modified or unmodified form, to third parties having licenses of equivalent scope herewith from AMERICAN TELEPHONE AND TELEGRAPH COMPANY ("AT&T"), or a corporate affiliate or authorized distributor thereof, for the same SOFTWARE PRODUCT, provided that you first verify the status of the recipient by calling USO at 800-328-8849 (or other number specified by USO). USO will give written verification of the recipient's status. You shall maintain a record of each such distribution and include such record in the quarterly report specified below. Such record shall include, for each such distribution, the identity of the recipient, the date of the verification, the name of the person at USO providing werification and the date of distribution. You may also obtain materials based on SOFTWARE PRODUCTS subject to this Letter Agreement from such a third party and use such materials pursuant to this Letter Agreement provided that you treat such materials hereunder the same as such SOFTWARE PRODUCT.
(c) You will restrict the number of copies of both SOFTWARE PRODUCTS and SUBLICENSED PRODUCTS made by you to those necessary (including backup and archival copies) to exercise the license above.
(d) No copies of a SUBLICENSED PRODUCT shall be distributed to a non-AT&T end-user customer unless and until you have entered into a written agreement with such customer that includes the substance of the following provisions:(1) Only a personal, nontransferable and non-exclusive right to use the software on one machine at a time is granted to the customer.
(2) No title to the intellectual property in the software is transferred to the customer.
(3) The customer will not copy the software except as necessary to use the software on such one machine.
(4) The customer will not transfer the software to any other party unless authorized by you to do so.
(5) The customer will not export or re-export the software without the appropriate license from the U. S. Government.
(6) The customer will not reverse compile or disassemble the software.
Such written agreement may be a document executed by the customer or a "shrink wrap" agreement. However, we prefer that shrink wrap agreements not be used in those foreign jurisdictions where it is not clear that our software is protected by copyright.
If you plan to use distributors, you must insure that such distributors pass on corresponding provisions to their customers. If you permit such distributors to make the copies of the software they distribute, you will need to keep track of the quantities such distributors make
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for purposes of reporting such quantities to us and determining fees payable
(e) The written agreement contemplated in (d) above shall include appropriate disclaimer of any warranty by AT&T or any of its subsidiaries (including USO).
(f) Within thirty (30) days after the end of each quarter ending on March 31st, June 30th, September 3th or December 31st, commencing with the quarter during which this Letter Agreement first becomes effective, you must furnish to USO a written statement identifying:
(1) the make, model, serial number and location of each additional or replacing DESIGNATED CPU on which a copy of a specified SOFTWARE PRODUCT was installed during such quarter and the equivalent inforation for any DESIGNATED CPU(s) which were replaced during such quarter; (2) the right to use fees for such additional DESIGNATED CPUs; (3) the number of copies of each SUBLICENSED PRODUCT put into use by you during such quarter, furnished by you to other AT&T entities or to customers or distributors during such quarter or reported to you during such quarter as having been made and furnished to customers and other distributors by your distributors to whome you have given the right to copy;
(4) the SOFTWARE PRODUCT on which each such SUBLICENSED PRODUCT is based;
(5) the initial sublicensing fee, if applicable, for any such SOFTWARE PRODUCT;
(6) the per-copy sublicensing fees for such copies and, if applicable, whether such fees are based on such factors as a limitation on number of users, a fee for a combination of products or a right granted to a customer to use a copy of a SUBLICENSED PRODUCT on multiple CPUs;
(7) the NET AMOUNT of the quarterly payment relating to per-copy fees; and
(8) the DISCOUNT PERCENTAGE used in calculating such NET AMOUNT.
(g) You may be entitled to a discount on per-copy sublicensing fees payable for SUBLICENSED PRODUCTS distributed during a twelve (12) month calendar year. Such discount shall be based on either the GROSS AMOUNT for such period or the GROSS AMOUNT for the immediately preceding period, if any, whichever yields the greater discount; provided however, that for the period covering calendar year 1990, such discount may, at your option be the grester of the discount calculated per the preceding sentence or forty-five percent (45%).
(h) You may estimate a GROSS AMOUNT for any additional one-year period in which you expect the GROSS AMOUNT to be higher than that for the immediately preceding period. However, if you calculate any quarterly payment during a period based on such an estimate, then the total amount paid after the first, second, and third full quarters of such period must be, respectively, at least one quarter, one half and three quarters of the NET AMOUNT calculated using such estimated GROSS AMOUNT and such corresponding DISCOUNT PERCENTAGE. At the end of each period for which an estimated GROSS AMOUNT has been used, the actual DISCOUNT PERCENTAGE and actual NET AMOUNT shall be determined from the actual GROSS AMOUNT for such period and the final quarterly payment shall be determined by subtracting the total of the quarterly payments previously made for such period from such NET AMOUNT. If such total exceeds the actual NET AMOUNT, the excess shall be credited against future quarterly payments for per-copy sublicensing fees. Such excess shall not be refunded.
(i) If you do not make an estimate pursuant to the paragraph above, then the payment for each quarter in a period shall be calculated by determining a NET AMOUNT from the GROSS AMOUNT for the portion of such period up to the end of such quarter and subtracting from such NET AMOUNT the total of any quarterly payments already made for such period. The DISCOUNT PERCENTAGE used in determining such NET AMOUNT shall either be
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1. CPU means central processing unit.
2. COMPUTER PROGRAM means any instruction or instructions, in source-code or object- code format, for controlling the operation of a CPU.
3. DESIGNATED CPU means any CPU listed as such for a specific SOFTWARE PRODUCT in a Supplement to this Letter Agreement.
4. SOFTWARE PRODUCT means materials such as COMPUTER PROGRAMS, information used or interpreted by COMPUTER PROGRAMS and documentation relating to the use of COMPUTER PROGRAMS. Materials available from USO for a specific SOFTWARE PRODUCT are listed in the Schedule for such SOFTWARE PRODUCT. Certain SOFTWARE PRODUCTS available under this Letter Agreement may contain materials prepared by other developers.
5. SUBLICENSED PRODUCT means (i) COMPUTER PROGRAMS in object-code format based on a SOFTWARE PRODUCT subject to this Letter Aggreement and (ii) any other materials identified in the "Sublicensing" section of the Schedule for such SOFTWARE PRODUCT.
6. GROSS AMOUNT for a calendar year (or portions thereof) means the total amount of per-copy sublicensing fees accrued during such calender year (or portion thereof).
7. NET AMOUNT for a calendar year (or portion thereof) means the amount determined from the GROSS AMOUNT by the DISCOUNT PERCENTAGE for such calendar year (or portion thereof) and subtracting the result from such GROSS AMOUNT.
8. DISCOUNT PERCENTAGE for a calendar year (or portion thereof) is the percentage calculated from the previous calendar year's GROSS AMOUNT by using the following formula:
DISCOUNT PERCENTAGE= GROSS AMOUNT for previous calendar year
GROSS AMOUNT + 3.75 million X 100%
up to a maximum of sixty percent (60%). The DISCOUNT PERCENTAGE for a calendar year following a calendar year during which the GROSS AMOUNT was less than $100,000.00 is zero percent (0%).
1 Because there is a page missing, and because we obtained this document from the court, we'll double check to make certain that the exhibit is missing page four in the original filed at the court. It isn't missing on our end.