Thursday, June 19, 2003
Some Caldera Contracts Are Online
I went looking for any contracts online that might have derivative code clauses. This model corporate contract on Findlaw defines "derivative code" simply by copyright law:
""Derivative Works" shall have the meaning set forth in the United States
Copyright Act, 17 U.S.C. Section 101, et seq." That would seem a normal definition.
Then I fell on this: Findlaw lists a number of older Caldera contracts on this page, dating from 1999 to 2000.
This contract, between SCO and Caldera in 2000, is interesting for the following clauses on the contract's pages 32 and 33, Clause 2.15 "Intellectual Property":
"(e) To SCO's Knowledge, no third party is infringing or misappropriating any of the SCO IP Rights....(g) The Contributing Companies and the Contributed Company Group have taken reasonable and practicable steps designed to safeguard and maintain the secrecy and confidentiality of, and its proprietary rights in, all
material trade secrets or other confidential information constituting SCO IP Rights....To SCO's Knowledge,
all development employees of the SCO IP Rights, and all other officers,
employees and consultants of the Contributed Company Group have executed and
delivered an agreement regarding the protection of proprietary information and
the assignment to his/her employer or principal of the SCO IP Rights arising
from the services performed by such persons, except where this absence of such
agreement would not have a Material Adverse Effect on the Group Business."
In (h) of 215, it makes reference to a "SCO Disclosure Letter", which lists "license, sublicense, agreement or other permission pursuant to which SCO or
the Contributed Business Group is entitled to use third party IP Rights
(excluding shrink wrap licenses to commercially available software sold at
retail) as of the date hereof, the absence of which would have a Material
Adverse Effect on the Group Business that a third party owns and that SCO or the
Contributed Business Group uses pursuant to a license, sublicense, agreement or
other permission, and describes and identifies such license, sublicense,
agreement or other permission (excluding shrink wrap licenses to commercially
available software sold at retail)", but this letter was not online. Oddly, governing law state for that contract was to be NY and venue chosen was CA:
" 13.1 Governing Law; Venue.
"(a) Governing Law. The internal laws of the State of New
York (irrespective of its choice of law principles) will govern the validity of
this Agreement, the construction of its terms and the interpretation and
enforcement of the rights and duties of the parties hereto, except that the
fiduciary duties of the directors and managers of parties hereto and its
Affiliates shall be governed by the law of the jurisdiction of such company's
"(b) Venue. The parties agree that any dispute regarding
the interpretation or validity of, or otherwise arising out of this Agreement,
shall be subject to the exclusive jurisdiction of the California State Courts in
and for Santa Clara County, California or, in the event of federal jurisdiction,
the United States District Court for the Northern District of California sitting
in Santa Clara County, California, and each party hereby agrees to submit to the
personal and exclusive jurisdiction and venue of such courts and not to seek the
transfer of any case or proceeding out of such courts.
"13.2 Assignment; Binding upon Successors and Assigns. None of the parties hereto may assign any of its rights or obligations hereunder without the prior written consent of the other parties hereto; provided, however, that the sale or other transfer of the stock of any Contributing Company shall not be deemed an assignment provided that this Agreement remains enforceable against the Contributing Company after such stock sale or transfer. Subject to the preceding sentence, this Agreement will be binding upon and inure to the benefit
of the parties hereto and its respective successors and permitted assigns."
Caldera also has on the list of their contracts "GNU General Public License -Caldera Systems", which ends with these words:
" This General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Library General Public License instead of this License."
This would indicate to me that when Caldera provided these contracts and license agreements to Findlaw, evidently in 2000, judging from the latest date, it included the GPL as one of the ones it knew it was utilizing.
Coder Visits SCO and Sees Code
I can't encourage you enough to visit this article in today's Linux Journal. Ian Lance Taylor, a long-time free software programmer, flew to Utah at his own expense to see the infamous SCO proof code and met with Sontag and Stowell there. They showed him their presentation personally, including the 80 lines of code. His insights are very valuable. He writes, as I wrote the other day, that the key to this case isn't so much a small amount of identical code. It's what is the definition of derivative code? SCO told him their interpretation, which is very expansive, and he reacts thus:
"All programs run on Unix use a Unix API; do they therefore become derivative works? Presumably not. However, when writing a program that runs on Unix, I might look at Unix source code if I have access to it; does that make my program a derivative work? It seems, from SCO's comments, that it might claim this is so.
"I am not a lawyer. However, I hope the courts will not accept SCO's broad definition of derivative work. I think it would be dangerous for free software and for software development in general. Software thrives by extending work done by others. If adding a component to an existing piece of software means the component is owned by the owner of the existing software, then few people will add components. That would not be good for anybody.
"It's worth noting that if a court does accept such a broad notion of derivative work, it will weaken SCO's defense against the allegations that Linux code was copied into UnixWare. That would seem to put SCO on the horns of a dilemma; I don't know how it plans to resolve it."
Here is what Aberdeen Group's Bill Claybrook says is his understanding of SCO's definition, in his article on how companies can avoid legal problems with SCO:
"Derivative code, as defined by SCO, is extensions to the Unix kernel or code written to run in the System V kernel. The SCO-IBM lawsuit partly concerns derivative code. SCO claims that IBM[base ']s release of derivative code to Linux is a violation of its contract with SCO. IBM claims that it owns the derivative code and can do anything with it that it wants."
Here's why the definition is so important. If SCO's interpretation were to be accepted, it would mean that even trying to remove and rewrite the code would be useless. SCO would still claim it, if I have understood their argument:
"As noted above, it feels large chunks are derivative. It argued that even a full replacement would be in part based on the prior effort, and thus would itself be derivative, at least under the terms of the IBM contract.
"This may be a deep misunderstanding of the free software process. If Linux becomes encumbered to the point where commercial users must pay a fee, I expect that many independent developers will stop working on it. Linux development will slow down and may eventually stagnate. The people in charge at SCO may not understand that."
It's possible Ian is right, that SCO and the attorneys simply are a bull in a china shop, oblivious of their effect because they are what they are. However, information is powerful, and I hope they read what he wrote and think about it, because if they achieve their current aims, it will harm them too in the long run. It has already hurt them in the short run. It is not too late for them to tack and move in a better direction.
Here's another page I can recommend, Karsten Self's SCO page. There are some comments posted there that I will be commenting on as I can, particularly the Sun issue.
Meanwhile, if anyone reading this blog has any textbooks defining "derivative code", please email me the definition, with title of book, author(s), page number(s), and publisher. If you want to scan in the page instead of typing, that's fine. A court would be influenced in all likelihood by evidence that SCO's definition is way outside the definition normally accepted in the field.
Thanks, Everyone Thanks for the tech feedback, especially Alexander, who was specific as to how to fix the problem. I have applied all the suggestions. Comments are working now too. I've set it up so only 2 days' worth of posts show on the home page, for speed, so if you want to look at previous posts, click on the date on the calendar on the right. Eventually I'll figure out how to archive by date and title or maybe topic, so you can find what you want quickly. I've also thumbnailed the pics and removed some that couldn't be reduced and still be readable. If 56K folks still have trouble loading the page, let me know and I'll tweak some more.
I do this when I am not working, which is why posts get up at 5 AM or midnight, and I've been concentrating so hard on content, I failed to pay enough attention to the underpinnings. Also, I'm new to blogging.
The purpose of this blog is anti-FUD. FUD only works when people don't have true facts. I am trying to put true facts out there, so the FUD doesn't stick. If anyone sees a way to do a better job, whether it be explaining something better, including information, or fixing a tech problem, I am listening.
Problem With Comments More likely, it's a problem with me. But one reader just let me know that the comments functionality isn't working. So if you tried to leave a comment, don't give up. Email instead. Meanwhile, I'll try, try again. I also just heard that this blog is now in the Radio's top 100 blogs. And it's just a little over a month old.