[DMCA-Activists] Dan Bricklin's Links on SCO

[Seth Johnson]

(From SATN blog.  Just a collection and summary, with a few questions
considering GNU/Linux versus SCO's notions of contracts and exclusive
rights.  -- Seth)


> http://www.satn.org/archive/2003_06_15_archive.html#105616671263746985


Some links in reference to the SCO / IBM lawsuit 


As a LINUX user and a person interested in computer software law, I've been
following the SCO / IBM lawsuit. Until recently, much of what we saw in the
press was name calling and little substance to understand what really will
be at issue. This week, though, SCO started letting the public know some of
the areas that show the copying they complain about.

The one most mentioned was the RCU (Read-Copy Update) code. This is a
locking method (an important thing to any operating system). There were
links provided in the news stories (such as the one on News.com
[http://news.com.com/2100-1016_3-1017719.html]) to articles about RCU, such
as one on SourceForge.net
(http://lse.sourceforge.net/locking/rcupdate.html). That article says that
"Read-Copy Update was originally designed for DYNIX/ptx, a UNIX operating
system from Sequent Computer Systems Inc., now a part of IBM. Similar
methods were also used for Tornado and K42 OS projects at University of
Toronto and IBM Research."

Hmm. So Sequent (now part of IBM) wrote the code at issue.

So the question is, to my "not a lawyer" mind, "If someone adds something to
their copy of licensed UNIX, does it become part of the copyrighted material
owned by the owner of the original UNIX it was added to? Does the owner of
the original UNIX now control that new code, too?" I understand that, as
copyright law is normally understood, you can't take your additions, along
with the UNIX you added them to, and claim ownership of the whole thing.
But, if you take your additions alone, are they now "tainted" and not yours
to do with as you wish (such as to donate them to the GPL'ed LINUX)?

GPL, as I understand it (http://www.gnu.org/copyleft/gpl.html), does not
"taint" in this way. Adding something to a GPL product adds the GPL to that
material so it has to be freely distributable, but it does not transfer
ownership of the original work to the creator of the original GPL'ed
product. "...the intent is to exercise the right to control the distribution
of derivative or collective works based on the Program" not transfer
ownership.

So, for IBM and UNIX, with respect to RCU, does the contract it signed for
UNIX say that they transfer ownership of the additions?

Looking at the Agreements (see SCO's SCOSource Home Page
[http://www.sco.com/ibmlawsuit/]) you find the following (there is probably
more -- I haven't read it all):

In Exhibit A, the original Agreement with AT&T
(http://www.sco.com/scosource/ExhibitA.qxd.pdf), it says in paragraph 2.01:
"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." The question is, what does "treated hereunder as part of the
original" mean? Is that for royalty purposes? Does this transfer all of the
rights? Does this apply to only the entire resulting material, i.e., the new
only when it's combined with the old? I am not a lawyer (IANAL), but I
assume this will probably be argued. (Why not? There are billions of dollars
at stake...)

In paragraph 2.05(b) of Exhibit B, the AT&T Sublicensing Agreement
(http://www.sco.com/scosource/ExhibitB.qxd.pdf), it talks about the need for
separate agreements to transfer rights, title, and interest to modifications
in certain situations.

In A.9. of Exhibit C, a further agreement with AT&T
(http://www.sco.com/scosource/ExhibitC.qxd.pdf), it says: "Nothing in this
agreement shall prevent LICENSEE from developing or marketing products or
services employing ideas, concepts, know-how or techniques relating to data
processing embodied in SOFTWARE PRODUCTS subject to this Agreement, provided
that LICENSEE shall not copy any code from such SOFTWARE PRODUCTS into such
product or in connection with any such service 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 service or providing any such service. If information relating
to a SOFTWARE PRODUCT subject to this Agreement at any time becomes
available without restriction to the general public by acts not attributable
to LICENSEE or its employees, LICENSEE's obligations under this section
shall not apply to such information after such time." Section B. 5. goes on
to amend 2.05(b) of last Agreement, again showing that modifications may be
owned by modifier, and that ownership requires contract saying it is
transferred. This says you can't copy code, but does that apply to code you
wrote yourself? Does "becomes available without restriction to the general
public" include the times when others break a contract, so the misdeeds of
others let IBM off the hook?

In Exhibit D, called Amendment No. X between IBM, Novell, and old SCO
(http://www.sco.com/scosource/ExhibitD.qxd.pdf), it says: "IBM will have the
irrevocable, fully paid-up, perpetual right to exercise all of its rights
under the Related Agreements...the irrevocable nature of the above rights
will in no way be construed to limit Novell's or SCO's rights to enjoin or
otherwise prohibit IBM from violating any and all of Novell's or SCO's
rights..."

I guess some of what we need to figure out is in here. I thought posting
this information would make for fun reading for others who are interested in
this lawsuit but aren't used to skimming through all the legal material.


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