A Confusing Convolution of Documents and Agreements

Additionally, as Tom Carey points out in the discussions, there are lots of documents that both IBM and SCO are not disclosing publicly at this time -- particularly the contracts and agreements between IBM and SCO relating to Project Monterey, a joint IBM and SCO Unix development project. Those documents could dramatically change the entire SCO v IBM lawsuit when and if they are disclosed.

A very important document that works very much in IBM's favor in the lawsuit is a 1985 side letter of agreement (the "1985 Side Letter) between AT&T and IBM, which is Exhibit C to the SCO Amended Complaint. Simply put, this 1985 Side Letter provides an end-run for IBM to avoid all these issues about derivative works and Unix Software Product.

In essence that 1985 Side Letter says that any code independently developed by IBM belongs to IBM, not to A&T. SCO now is the successor to AT&T's interests in the Unix license agreements. So, if you replace AT&T in that 1985 Side Letter with SCO, that Side Letter says that IBM and not SCO is the owner of any code independently developed by IBM.

Please do not forget that AT&T sold its Unix Systems Laboratory to Novell. Then Novell sold its Unix Business to SCO, which was purchased by Caldera.

To add to the confusion, Caldera subsequently changed its name to SCO. So, in this article and the discussions with Tom Carey, please feel free to substitute SCO whenever you see AT&T, as SCO now is the owner of what originally are the AT&T licenses.

The 1985 Side Letter means that as to IBM-developed code, the derivative works and Software Product issues are moot. IBM developed code belongs to IBM -- regardless of any language to the contrary in the Unix Software Agreement or the Unix Sublicense Agreement.

However, while the 1985 Side Letter let's IBM own its independently developed IBM code, that 1985 Side Letter does not seem to apply to code Sequent developed prior to its acquisition by IBM. This could turn out to be an Achilles' heel Hell for IBM in its defense of the SCO-Caldera v IBM lawsuit.

Speaking of the convoluted, intertwined, and more than complex collection of licenses, agreements, amendments, side letters and so forth, there are two primary Unix license agreements. One type is the AT&T Technologies, Inc. Software Agreement, which usually has an Agreement Number starting with SOFT. This is a license that allows the licensee to use the Unix System V operating system on its own computers, only.

Count 1 of the Amended Complaint, the First Cause Of Action (Breach of IBM Software Agreement), addresses alleged violations of the Software Agreement by IBM. The IBM Software Agreement is included in Exhibit A of the Amended Complaint.

Count 3 of the Amended Complaint, the Third Cause Of Action (Breach of Sequent Software Agreement), addresses alleged violations of the Software Agreement by Sequent. The Sequent Software Agreement is included in Exhibit F of the Amended Complaint.

The other type is the AT&T Technologies, Inc. Sublicensing Agreement, which usually has an Agreement Number starting with SUB. This is a license that allows the licensee to sub-license the Unix System V operating system for use by third parties.

Count 2 of the Amended Complaint, the Second Cause Of Action (Breach of IBM Sublicensing Agreement), addresses alleged violations of the Sublicensing Agreement by IBM. The IBM Sublicensing Agreement is included in Exhibit B of the Amended Complaint.

Both the Software Agreements and the Sublicensing Agreements have recitals allowing AT&T to terminate the license upon breach of the license by the licensee. And both the Software Agreements and the Sublicensing Agreements have recitals that allow modification on the Unix System V Software Product providing that any such modifications become part of the Software Product, although that gets very complicated.

So here are our actual e-mail discussions with Tom Carey about SCO's revised IBM lawsuit and SCO's termination of IBM's Unix and AIX licenses. The bulk of the discussions took place between 23 June and 27 June 2003.

There has been some updating to the discussions recently to reflect SCO's admissions to MozillaQuest Magazine that IBM and not SCO owns the copyrights to the JFS, RCU, and NUMA software code and other recent developments. Where necessary to provide a proper context, parts of our Amended SCO Complaint article are included here too.

The ordering of the questions and answers is not necessarily in chronological order. Rather the ordering has been arranged to follow a more topical flow to provide better readability.

Nevertheless, this interview with Tom Carey for the most part is uncut and uncensored. So, you might find some repetition and redundancy. However, without it, the story would not flow as well.

Also, please keep in mind in these discussions that some of the discussion involves hypothetical scenarios. For example, SCO does not own any Unix patents and has admitted that it does not own copyrights for the IBM-developed code. Yet there are passages in the discussions that consider circumstances in which SCO-Caldera might have or might be able to obtain copyrights or patents to IBM-developed code.

The Tom Carey Interview

Who Is Liable to Whom for What

MozillaQuest Magazine: One issue is the liability of IBM, as alleged in the SCO v IBM Amended Complaint, as opposed to possible liability of Linux kernel and GNU/Linux operating system developers, Linux distribution providers, Linux users, and so forth. What are your thoughts about that?

Thomas C. Carey: So far, SCO is pursuing claims based upon breach of contract and theft of trade secrets. Those claims are aimed specifically at IBM, and have little applicability to distributors or end users. As for developers, the claims might have some vitality if a developer had access to SCO's code and did in fact use it in a contribution made to Linux.

Thomas C. Carey: If SCO broadens its claims to include copyright or patent infringement, then all bets are off. Everyone is a potential defendant.

-- TCC Update: And SCO's recent announcement that it has registered UNIX with the U.S. Copyright Office seems to be a precursor to the assertion of copyright rights. The copyright registration itself isn't terribly substantive. It's not like the patent office, where examiners review the content of your filings and compare it against prior art. The copyright office takes things at face value. But registering the code is a necessary first step before SCO can make copyright claims against third parties -- end users of Linux -- with whom it has no contractual relationship. It now appears that SCO is headed down that road. I think you can expect at least one test case of copyright infringement to be brought.

- Thomas C. Carey: Your example is not quite on point. The copyright laws give the owner of the copyright the exclusive right to make copies. Installing software onto a computer involves making a copy. Thus a "user" is most likely an infringer.

-- TCC Update And SCO has now stated that it views the users -- especially those using Linux v. 2.4 in a multiprocessor form -- to be likely copyright infringement defendants.

(Please see the Update Note 1 in the sidebar.)

-- MozillaQuest Magazine: This is interesting and well taken. It also gives SCO a much stronger position in its anti-Linux war.

(Please see the Update Note 2 in the sidebar.)

Please see the first two parts of our series about SCO-Caldera's IP claims plus its intentions to enforce and license its intellectual property rights.

SCO-Caldera & the GNU/Linux Community: The SCOsource IP Matter

SCO-Caldera & the GNU/Linux Community: Part 2, Under the Iceberg's Tip