SCO Letter Demands Certification From Unix Customers
Editors note: The SCO Group Inc. on Thursday fired a new salvo in its struggle over Linux: a letter to Unix licensees demanding proof that they arent contributing Unix code to the open-source OS. If they dont comply within 30 days, SCO writes, they face the loss of their Unix licenses.
December 18, 2003
Re: AT&T / SCO License No. SOFT-____
Dear UNIX Licensee:
You are designated as Licensee under the above-referenced software licensing agreement (the "Agreement"). The undersigned SCO Group, Inc. ("SCO") is the successor licensor. The Agreement is in full force and effect according to its terms.
License Grant to Use UNIX Technology
You were granted under Para. 2.01 of the Agreement:
[A] personal, nontransferable and nonexclusive right to use in the [Authorized Country] each Software Product identified in one or more Supplements hereto, solely for Licensees own internal business purposes and solely on or in conjunction with Designated CPUs for such Software Product. Such right to use includes the right to modify such Software Product and to prepare derivative works based such Software Product, provided that the resulting materials are treated hereunder as part of the original Software Product.
The Software Product thus includes more than the base System V release licensed by you. Software Products also includes: (a) the UNIX software release based on UNIX System V prepared by your UNIX vendor and (b) modifications to, or derivative works based on, any UNIX product made by you.
Limitations on Use of UNIX Technology
Your limitations on use and other obligations under the Agreement include the following:
Para. 2.05. No right is granted by this Agreement for the use of Software Products directly for others, or for any use of Software Products by others. [This is expanded under 2.06 under some contracts.]
Para. 4.01. Licensee agrees that it will not, without prior written consent of [SCO], export, directly or indirectly, Software Products covered by this Agreement to any country outside the[Authorized Country].
Para. 7.06(a) [7.05(a). Licensee agrees that it shall hold all parts of the Software Products subject to this Agreement in confidence for [SCO]. Licensee further agrees that it shall not make any disclosure of any or all of the Software Products (including methods or concepts utilized therein) to anyone, except to employees of Licensee to whom such disclosure is necessary to the use for which rights are granted hereunder. Licensee shall appropriately notify each employee to whom such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee.
Para. 7.09. Neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by Licensee and any purported assignment or transfer shall be null and void.
Para. 7.10. [N]othing in this Agreement grants to Licensee the right to sell, lease, or otherwise transfer or dispose of a Software Product in whole or in part.
Required Certification Re: Use of UNIX
You are also obligated to certify proper use of the Software Products by you under the Agreement, as required by the following Para. 2.04 2.05:
On [SCOs] request, but not more frequently than annually, Licensee shall furnish to SCO a statement, certified by an authorized representative of Licensee, listing the location, type and serial number of all Designated CPUs hereunder and stating that the use by Licensee of Software Products subject to this Agreement has been reviewed and that each such Software Product is being used solely on such Designated CPUs (or temporarily on back-up CPUs) for such Software Products in full compliance with the provisions of this Agreement. (Emphasis added.)
Accordingly, SCO requires written certification by your authorized representative under Para. 2.04 within 30 days of receipt of this letter. Such written certification must include statements that:
1. You are not running Linux binary code that was compiled from any version of Linux that contains our copyrighted application binary interface code ("ABI Code") specifically identified in the attached notification letter.
2. You, your contractors and your employees have, to your knowledge, held at all times all parts of the Software Products (including methods and concepts) in confidence for SCO.
3. You have appropriately notified each employee and contractor to whom you have disclosed the Software Products, and taken steps to assure that such disclosure was made in confidence and must be kept in confidence by such employee or contractor. Please provide evidence of your compliance with this obligation. This evidence may include, but not be limited to, nondisclosure agreements, employee policies or manuals, or other such evidence of compliance.
4. Neither you nor your contractors or employees with access to the Software Products have contributed any software code based on the Software Products for use in Linux or any other UNIX-based software product.
5. Neither you nor your contractors or employees have used any part of the Software Products directly for others, or allowed any use of the Software Products by others, including but not limited to use in Linux or any other UNIX-based software product.
6. Neither you nor your contractors or employees have made available for export, directly or indirectly, any part of the Software Products covered by this Agreement to any country that is currently prohibited from receiving supercomputing technology, including Syria, Iran, North Korea, Cuba, and any other such country, through a distribution under the General Public License for Linux, or otherwise.
7. Neither you nor your contractors or employees have transferred or disposed of, through contributions to Linux or otherwise, any part of the Software Product.
8. Neither you nor your contractors or employees have assigned or purported to assign, any copyright in the Software Products to the General Public License, or otherwise for use in Linux or another UNIX-based software product.
SCO will not allow UNIX Licensees to make any improper use of the Software Products, including the use of the Software Products to assist development of Linux. If you fail to make, or are unable to make, a full and complete certification as required above within 30 days of receipt hereof, SCO may pursue all legal remedies available to it including, but not limited to, license termination rights.
THE SCO GROUP, INC.
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