Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page1 of 14
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` Plaintiffs,
`v.
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`TERIX COMPUTER COMPANY, INC., et al.,
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`summary judgment of Defendants Terix Computer Company, Inc., Maintech Incorporated, Volt
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`Delta Resources, Sevanna Financial, Inc. and West Coast Computer Exchange, Inc.’s express and
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`implied license defenses. Because the court finds no disputed issues of material fact on these
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`defenses, and that Oracle is entitled to judgment as a matter of law, Oracle’s motion is GRANTED.
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`I.
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`A copyright owner holds the exclusive right “to authorize” each right enumerated in the
`Copyright Act,1 including the right to license. Anyone holding a valid license has an affirmative
`defense to an owner’s claim for copyright infringement. A defendant asserting a license defense
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`has the initial burden of identifying any license provision that puts it in the clear. If it does so, the
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`1 See 17 U.S.C. § 106.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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` Defendants.
`Plaintiffs Oracle America, Inc. and Oracle International Corporation move for partial
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`Case No. 5:13-cv-03385-PSG
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`ORDER GRANTING MOTION FOR
`PARTIAL SUMMARY JUDGMENT
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`(Re: Docket No. 396)
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`ORACLE AMERICA, INC., et al.
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`For the Northern District of California
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`United States District Court
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page2 of 14
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`owner may overcome the defense by showing that the defendant’s conduct exceeded the scope of
`the provision in question.2 “[C]opyright licenses are assumed to prohibit any use not authorized.”3
`In 1992, Sun Microsystems released its first version of Solaris.4 Solaris is a UNIX-based
`operating system designed and used to operate server, blade, storage and related hardware.5 This
`includes hardware that is critical for legal, regulatory or business reasons, and therefore requires
`extremely high support levels.6 It also includes less critical systems for test, development and
`back-up.7 Sun regularly made available updates and firmware for Solaris that enhanced
`performance or simply fixed bugs in the system.8 Solaris updates and firmware are copyrighted,
`and their use is controlled by express license.
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`Different licenses govern the use of different versions of Solaris at issue in this case. Sun’s
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`Binary Code License Agreement, an integrated written contract covering Solaris versions 7, 8 and
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`9, provides the customer a “License to Use” the software as follows:
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`Sun grants to you a non-exclusive and non-transferable license for the internal use
`only of the accompanying software and documentation and any error corrections
`provided by Sun (collectively “Software”) for the number of users and the class of
`computer hardware for which the corresponding fee has been paid.9
`With Solaris 10, released in 2005, Sun changed the license structure to a two-part form: a
`Software License Agreement and accompanying Entitlement.10 The SLA provides:
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`2 See LGS Architects, Inc. v. Concordia Homes, 434 F.3d 1150, 1156 (9th Cir. 2006).
`3 S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1088 (9th Cir. 1989).
`4 See Docket No. 269 at ¶ 10. The major releases of Solaris at issue are Solaris 7 (released
`November 1998), Solaris 8 (February 2000), Solaris 9 (May 2002), Solaris 10 (January 2005) and
`Solaris 11 (November 2011). See id.
`5 See id. at ¶¶ 10-12.
`6 See id. at ¶ 14.
`7 See id. at ¶ 15.
`8 See id. at ¶ 25.
`9 Docket No. 399-9 at 26; Docket No. 357 at 35.
`10 Docket No. 399-9 at 27; Docket No. 357 at 36.
`2
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`United States District Court
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page3 of 14
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`Subject to the terms of your Entitlement, Sun Grants you a nonexclusive,
`nontransferable limited license to use Software for its Permitted Use for the license
`term. * * * The terms and conditions of this Agreement will apply to any Software
`updates provided to you at Sun’s discretion, that replace and/or supplement the
`original Software, unless such update contains a separate license.11
`Each customer’s Entitlement is “the collective set of applicable documents authorized by Sun
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`evidencing your obligation to pay associated fees (if any) for the license, associated Services, and
`the authorized scope of use of Software under this Agreement.”12 The firmware at issue is licensed
`separately pursuant to the SLA and an accompanying firmware Entitlement.13
`Sun’s Common Development and Distribution License14 enables the “open source
`community” to download Beta versions of Solaris source code from opensolaris.org and, in
`accordance with the CDDL’s terms, use, modify and distribute it (among other things).15 The
`purpose is “to encourage developers to create new applications that run on [Solaris], so that when
`those applications are commercialized, they will drive additional licensing of” Solaris.16
`Sun was acquired by Oracle in 2011. Since at least that time, customers who want Solaris
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`updates and firmware must sign an annual contract for technical support services to be performed
`by Oracle.17 No customer may purchase updates or firmware without these services.18 Customers
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`11 Docket No. 399-9 at 28; Docket No. 357 at 36. Terix cites two Solaris SLAs. Maintech’s
`license affirmative defense cites others. All are substantively identical to each other.
`12 Docket No. 397-6.
`13 Docket No. 397-33. The firmware at issue in Oracle’s copyright claim, and thus the related
`licenses, date only from August 2010 to the present. Oracle’s copyright claim also does not extend
`to any “public” Solaris patches Sun provided to Defendants’ customers before 2010. See Docket
`No. 298 at ¶ 92.
`14 The parties agree that the BSD license (which applies to the OpenSPARC project) and the
`CDDL are substantially identical to each other.
`15 Docket No. 505-3; Docket No. 505-21.
`16 Cf. Oracle USA, Inc. v. Rimini Street, Inc., 6 F. Supp. 3d 1108, 1117-18 (D. Nev. 2014); Docket
`No. 510-5 at 9 (through OpenSolaris, “Sun received the benefit of work by contributors in open
`source community, who made improvements to Solaris and contributed those improvements back
`to Sun.”); Docket No. 539-11 at 34:20-25 (purpose of OpenSolaris was “to encourage developers
`to develop applications, et cetera, to try and expand the footprint of the operating system”).
`17 Oracle brands its support services as “Oracle Premier Support for Operating Systems” and
`“Oracle Premier Support for Systems.” See Docket No. 269 at ¶¶ 50-53. The difference between
`the two offerings is that only the latter includes hardware support services. See id. at ¶ 55.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`United States District Court
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page4 of 14
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`that sign a support agreement—either directly with Oracle or through a reseller authorized by
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`Oracle—receive a Customer Support Identification number linked to the products covered by the
`agreement.19 The CSI number allows customers to create login credentials to access Oracle’s
`secure support website.20 Using these credentials, the customer may download Solaris updates and
`firmware for the hardware systems that are covered by the support agreement.21 The customer may
`not share or use its CSI number for the benefit of others or for the benefit of unsupported Oracle
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`hardware—only customers who pay for and maintain an agreement with Oracle for the hardware at
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`issue may download Solaris updates and firmware and only for their own internal business use on
`specified computers.22
`Defendants offer their own support services for Solaris hardware.23 Each either contracts
`directly with customers to provide this support or indirectly as a subcontractor to another entity,
`such as its co-defendant.24
`Oracle filed this suit against Defendants for copyright infringement, fraud and other torts,25
`and Defendants promptly counterclaimed, alleging antitrust violations, unfair competition and
`other torts.26 Defendants also pleaded a variety of affirmative defenses to Oracle’s claims,
`including affirmative defenses of express and implied license. Terix’s license defense relies on its
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`18 As a result of the new Oracle policy, 22% of all “SPARC” Solaris 8 Solaris Updates were
`supported by Sun before the acquisition, compared with 93% supported by Oracle a year later. The
`comparable figures of x86 Solaris 8, SPARC Solaris 9, x86 Solaris 9, SPARC Solaris 10, and x86
`Solaris 10 were 13%-97%, 18%-92%, 13%-95%, 14%-78% and 12%-74%, respectively. See id. at
`¶ 52.
`19 See Docket No. 249 at ¶ 7.
`20 See id.
`21 See id.
`22 See id.
`23 See Docket No. 269 at ¶ 30.
`24 See id.
`25 See Docket No. 249 at 30-41.
`26 See Docket No. 356-5 at 12-24.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page5 of 14
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`customers’ license rights.27 According to Terix, “with the purchase of a Sun server or downloading
`of the Solaris 7, 8 or 9 operating system, and pursuant to the accompanying BCL, purchasing
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`Customers received perpetual license rights both to their obtained version of Solaris 7, 8 or 9 and to
`any subsequent Solaris Updates.”28 Terix’s claimed “License Rights for Solaris 10” are allegedly
`based on the “[SLA] and an accompanying Entitlement.”29
`After a series of pleadings and discovery-related skirmishes, Oracle now moves for partial
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`summary judgment on each of Defendants’ license defenses.
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`II.
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`This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The parties further
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`consented to magistrate judge jurisdiction under 28 U.S.C. §636(c) and Fed. R. Civ. P. 72(a).
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`Fed. R. Civ. P. 56(a) provides that the “court shall grant summary judgment if the movant shows
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`that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
`matter of law.”30 At the summary judgment stage, the court “does not assess credibility or weigh
`the evidence, but simply determines whether there is a genuine factual issue for trial.”31 Material
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`27 Docket No. 359 at 29; Docket No. 399-9 at 26.
`28 Docket No. 399-9 at 27.
`29 Id. at 27-29. Terix’s interrogatory response cites several versions of the Solaris Entitlement
`(Docket No. 397-6), but relies on it only insofar as the license grant is “perpetual.” Docket No.
`399-9 at 28; Docket No. 399-12 at 130:25-131:6. At deposition, Terix also referred to the
`Entitlement’s definition of Software as Solaris 10, its Permitted Uses, and its reference to the SLA.
`Docket No. 399-12 at 134:3-135:22, 138:16-24. Terix offers no license defense related to Solaris
`11. Id. at 29:13-16.8. Terix also refers to a “Sun Microsystem User License Agreement” stating
`“‘Terms of Use’ on the SunSolve website” and a “‘User License Agreement’ readme file” that
`accompanies Solaris Updates downloaded from MOS. Docket No. 399-9 at 30:1-11. Terix claims
`both licenses are “explicit . . . that their terms are not intended to supersede any original license
`grants, but rather that the terms of the original license agreements relating to the version of Solaris
`for which the Solaris Update is sought continues to apply to the downloaded Solaris Update (i.e.,
`the BCL for Solaris 7, 8 or 9, and the SLA and accompanying Entitlement for Solaris 10).” Id. at
`30:12-16. Similarly, Terix refers “on information and belief” to “General Terms Agreements”
`some Oracle customers had, but concedes those were also “limited by any restrictions set out in the
`. . . terms accompanying the software”—i.e., the BCL and SLA. Docket No. 359 at 29; Docket No.
`399-12 at 102:5-103:6 (apart from a few, Terix does not know which customers had GTAs);
`Docket No. 399-13 (license grant in GTA Quinn testified about is “subject to . . . any supplemental
`license terms accompanying the Software,” i.e., the BCL or SLA). It also refers to the CDDL, an
`“open source” license. Docket No. 359 at 32.
`30 Fed. R. Civ. P. 56(a).
`31 House v. Bell, 547 U.S. 518, 559-60 (2006).
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`Case No. 5:13-cv-03385-PSG
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page6 of 14
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`facts are those that may affect the outcome of the case.32 A dispute as to a material fact is genuine
`if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party.33
`Defendants raise substantial questions about Oracle’s copyright registrations, and in
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`particular, whether portions of certain versions’ registrations were previously published.
`Registration is a prerequisite to a civil action for infringement,34 and a copyright “registration for a
`specific version of a computer program does not cover any unclaimable material that may appear in
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`that version. For purposes of registration, unclaimable material includes: Previously published
`material.”35 At the same time, the owner of both an underlying work (a patch) and a derivative
`work (a subsequent major release) “can . . . sue for copying of material that appears in both the
`derivative work and the underlying work.”36 The court needs to resolve this issue eventually, but
`not now: even if Oracle’s registrations are flawed, Defendants’ license defenses still fail as a matter
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`of law.
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`32 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
`might affect the outcome of the suit under the governing law will properly preclude the entry of
`summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”).
`33 See id.
`34 See J & J Sports Prods., Inc. v. Kigo, Case No. 10-cv-05512, 2011 WL 3418394, at *1 (N.D.
`Cal. Aug. 4, 2011) (“A federal copyright claim must include a showing of preregistration or
`registration of the copyright.” (citing 17 U.S.C. § 411(a) (“[N]o civil action for infringement of the
`copyright in any United States work shall be instituted until preregistration or registration of the
`copyright claim has been made in accordance with this title.”))); Cosmetic Ideas, Inc. v.
`IAC/Interactive Corp., 606 F.3d 612, 618 (9th Cir. 2010) (treating § 411 registration requirement
`as element of copyright infringement claim).
`35 United States Copyright Office, Compendium of U.S. Copyright Office Practices, Third Edition
`§ 721.8 (2014) (“Compendium III”). This has been Copyright Office’s policy since 1984. See
`United States Copyright Office, Compendium of U.S. Copyright Office Practices, Second Edition
`§ 323.01 (“Registration for a derivative computer program covers only the additions, changes, or
`other new material appearing in the program for the first time.”).
`36 Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1447-48 (9th Cir. 1994); see also Alaska
`Stock, LLC v. Houghton Mifflin Harcourt Publ’g Co., 747 F.3d 673, 680 (9th Cir. 2014) (Copyright
`Act “expressly requires only ‘identification’ [of preexisting works] in the singular, not titles of
`preexisting works incorporated.”).
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page7 of 14
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`III.
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`Defendants’ license defense requires that they present terms—express or implied—that
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`excuse each of Oracle’s allegations that they copied Oracle code in violation of Oracle’s exclusive
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`rights under 17 U.S.C. § 106. None of the licenses Defendants present meets this basic test.
`First, while Defendants make much of the particularity of Oracle’s infringement claims—
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`or lack thereof—the nature of Oracle’s motion makes the issue immaterial. Defendants argue that
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`because Oracle “has refused to confirm its contentions regarding the copyrighted material at issue,”
`it cannot defeat the license defense.37 But whatever the remaining imprecision of Oracle’s
`contentions,38 Defendants identify no connection between identifying each act of infringement
`alleged and determining whether there is a license that allows the infringing conduct. As Oracle
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`points out, Defendants offer no evidence, or even argument, that their license defense is anything
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`other than all-or-nothing. And in any event, Oracle accepts that to prevail on its motion, it must
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`show that there is no legally tenable interpretation of any license Defendants put forth “that entitles
`Solaris licensees to any patch for any version of Solaris software and firmware at any time that is
`at issue in this case.”39
`Second, Defendants have not shown a genuine issue of material fact as to any express
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`license. “[A] license must be construed in accordance with the purposes underlying federal
`copyright law” with particular emphasis on “the protection of the author’s rights.”40 Under
`California law, the intent of the parties to a written agreement “is to be ascertained from the writing
`alone, if possible.”41 California law also recognizes that contract interpretation is a question of law
`for the court that should only be left to a jury if “the interpretation turns upon the credibility of
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`37 See Docket No. 510-5 at 15.
`38 See Docket No. 541-8 at 8-17.
`39 Docket No. 510-5 at 15. Defendants also have identified a long list of customers for which they
`admit downloading patches. See Docket No. 541-11 at 5-14; Docket No. 541-13 at 6-8.
`40 S.O.S., Inc., 886 F.2d at 1088.
`41 U.S. Cellular Inv. Co. v. GTE Mobilnet, Inc., 281 F.3d 929, 934 (9th Cir. 2002) (quoting
`Cal. Civ. Code § 1639).
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`United States District Court
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`extrinsic evidence.”42 Where there is a dispute as to the meaning of a contract’s term, the court
`must determine whether the term is ambiguous or “reasonably susceptible” to more than one
`interpretation.43 Regardless of the answer, the trial judge is the arbiter of both ambiguous and
`unambiguous language, as long as the evidence required to resolve the ambiguity is
`uncontroverted.44
`This question of contract law asks whether the terms of the Binary Code License
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`Agreement and the Software License Agreement and accompanying Entitlement permit
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`Defendants’ conduct. And upon examination, it is clear that they do not. The BCL applies to
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`Solaris versions 7, 8 and 9 and provides in relevant part:
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`Sun grants to you a non-exclusive and non-transferable license for the internal use
`only of the accompanying software and documentation and any error corrections
`provided by Sun . . . for the number of users and the class of computer hardware for
`which the corresponding fee has been paid.45
`The SLA imposes similar restrictions on Solaris 10:
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`Subject to the terms of your Entitlement, Sun Grants you a nonexclusive,
`nontransferable limited license to use Software for its Permitted Use for the license
`term. ***The terms and conditions of this Agreement will apply to any Software
`updates provided to you at Sun’s discretion, that replace and/or supplement the
`original Software, unless such update contains a separate license.46
`Each customer’s Entitlement is “the collective set of applicable documents authorized by Sun
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`evidencing your obligation to pay associated fees (if any) for the license, associated Services, and
`the authorized scope of use of Software under this Agreement.”47
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`For the period at issue, Oracle offered hardware customers the ability to buy an annual
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`contract for technical support services that gave them access to patches through My Oracle
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`Support. These individuals could create individualized log-in credentials whereby they could
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`42 Parson v. Brand Dev. Co., 62 Cal. 2d 861, 865 (1965).
`43 See Dore v. Arnold Worldwide, Inc., 39 Cal. 4th 384, 393 (2006).
`44 See id.; Winet v. Price, 4 Cal. App. 4th 1159, 1166 n.3 (1992).
`45 Docket No. 397-4.
`46 Docket No. 397-5.
`47 Docket No. 397-6.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page9 of 14
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`download patches for their covered servers. Each download was subject to a click-through license
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`requiring that users comply with MOS Terms of Use:
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`You agree that access to My Oracle Support, including access to the service request
`function, will be granted only to your designated Oracle technical support contacts
`and that the Materials may be used only in support of your authorized use of the
`Oracle programs and/or hardware for which you hold a current support contract
`from Oracle.48
`By the very terms of these various contracts, it is clear that these licenses authorize use of
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`the specified Solaris software and firmware, as well as patches subsequently provided by Sun or
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`Oracle. And to the extent some of these patches are downloaded through MOS, they are subject to
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`any click-through license and the MOS Terms of Use. Focusing on the term “provide,” Defendants
`argue that the BCL and SLA allow users to download any software or patches that Sun or Oracle
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`developed. But even Terix CEO Bernd Appleby admitted that developing, or building, a patch is
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`not the same as providing it, and that the BCL does not require Oracle to provide all error
`corrections it developed.49 The court sees no ambiguity on the face of the license agreements that
`might warrant adopting any meaning other than the plain meaning of provide: to supply.50 And no
`other language in these agreements suggests an obligation to make available anything developed
`but not supplied.51 There is simply no reasonable justification to stretch the plain meaning of the
`contract’s language beyond the four-corners of the agreement.52
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`The SLA is clear that Sun would only provide patches at its discretion. It is true, as
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`Defendants note, that the SLA “does not contain language stating that Sun may choose to exercise
`[its] discretion [to provide patches] on a customer-by-customer basis.”53 But Sun did not need to
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`48 Docket No. 397-7.
`49 Docket No. 399-17 at 284:17-285:23, 287:11-15.
`50 “An agreement is not ambiguous merely because the parties (or judges) disagree about its
`meaning. Taken in context, words still matter.” Alameda Cnty. Flood Control v. Dep’t of Water
`Resources, 213 Cal. App. 4th 1163, 1189 (2013).
`51 See Stewart v. Abend, 495 U.S. 207, 228-29 (1990).
`52 See Cohen v. Paramount Pictures Corp., 845 F.2d 851, 853 (9th Cir. 1988) (rejecting
`interpretation of license agreement where “words . . . must be tortured to expand the limited right
`granted . . . to an entirely different [meaning]”).
`53 Docket No. 510-5 at 32.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page10 of 14
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`describe how it might exercise its discretion in order to retain it. In fact, Oracle freely provides
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`patches to every customer with a support contract, which is consistent with the licenses’ terms.
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`Making that discretionary decision as to when and how to supply patches (i.e., only making most
`available to paying customers) is exactly what the copyright laws allow Oracle to do.54
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`Given this interpretation, the next question as a matter of law is whether Defendants’
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`conduct was authorized under the BCL and SLA. The answer is plainly no. Where Defendants
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`falter is that the licenses specifically contemplate download privileges “for the number of users and
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`the class of computer hardware for which the corresponding fee has been paid” or for updates “that
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`replace and/or supplement the original Software” for which a customer pays “associated fees.”
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`Defendants violated the terms of the relevant licenses by using a customer’s credentials to—at the
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`very least—download patches for any number of that customer’s machines, whether covered by the
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`license terms or not. This type of use is clearly not contemplated on the face of the license
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`agreements. Even if Defendants could somehow show that their conduct was authorized, their
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`downloading would still be subject to the terms of the click-through licenses which require that
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`materials downloaded from MOS “may be used only in support of your authorized use of the
`Oracle programs and/or hardware for which you hold a current support contract from Oracle.”55
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`While the court does not find any ambiguity in the contract language that might warrant
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`consideration of extrinsic evidence, even Defendants’ purportedly damning evidence misses the
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`mark. Defendants offer policies that were posted on the internet to substantiate Oracle’s supposed
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`intent to perpetually license their products. Specifically,
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`[t]he Solaris Operating System has specific named releases, such as ‘Solaris 9’;
`each release may also have updates. A license to use a certain version of the
`software, such as Solaris 9, includes the right to use all current and future Solaris 9
`updates, but does not include the right to use the later version such as Solaris 10.56
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`54 See 17 U.S.C. § 106; Foad Consulting Group, Inc. v. Azzalino, 270 F.3d 821, 827 (9th Cir. 2001)
`(“Congress did not choose to regulate the conditions under which a copyright holder can grant a
`nonexclusive copyright license to another.”).
`55 Docket No. 397-7.
`56 Docket No. 510-57.
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page11 of 14
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`But there is no evidence that this explanation of the relationship between Solaris versions overrides
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`the plain language of the contract which contemplates that a customer can access patches and
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`updates related to whatever Solaris version they are running on licensed servers—subject to a
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`support contract. In particular, the BCL and SLA both include integration clauses which prohibit
`amendment.57 Because of these integration clauses, the licenses cannot be “explained or
`supplemented by evidence of consistent additional terms,”58 let alone inconsistent ones.
`As to the CDDL,59 there is no dispute that the patches at issue were downloaded to be
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`applied to versions of Solaris covered by the BCL and SLA. Defendants have not argued that the
`relevant customers were running OpenSolaris—the only version of Solaris covered by the CDDL.60
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`57 See Docket No. 397-4:
`This Agreement is the entire agreement between you and Sun relating to its subject matter.
`It supersedes all prior or contemporaneous oral or written communications, proposal,
`representations and warranties and prevails over any conflicting or additional terms of any
`quote, order, acknowledgment, or other communication between the parties relating to its
`subject matter during the term of this Agreement. No modification of this Agreement will
`be binding, unless in writing and signed by an authorized representative of each party.
`See Docket No. 397-5:
`This Agreement, including any terms contained in your Entitlement, is the entire agreement
`between you and Sun relating to its subject matter. It supersedes all prior or
`contemporaneous oral or written communications, proposals, representations and warrants,
`and prevails over any conflicting or additional terms of any quote, offer, acknowledgment,
`or other communication between the parties relating to its subject matter during the term of
`this Agreement. No modification of this Agreement will be binding, unless in writing and
`signed by an authorized representative of each party.
`58 Cal. Code Civ. Proc. § 1856(b).
`59 Section 2 of the CDDL grants anyone “a world-wide, royalty-free, non-exclusive license . . . to
`use, reproduce, modify, display, perform, sublicense and distribute the Original Software (or
`portions thereof), with or without Modifications, and/or as part of a Larger Work,” subject to
`compliance with Section 3.1:
`Any Covered Software that You distribute or otherwise make available in Executable form
`must also be made available in Source Code form and that Source Code form must be
`distributed only under the terms of this License. You must include a copy of this License
`with every copy of the Source Code form of the Covered Software You distribute or
`otherwise make available. You must inform recipients of any such Covered Software in
`Executable form as to how they can obtain such Covered Software in Source Code form in
`a reasonable manner on or through a medium customarily used for software exchange.
`Docket No. 505-21.
`60 Indeed, until January 2015, when Oracle filed its motion, Defendants had never even mentioned
`the CDDL in their interrogatory responses identifying the basis for the license defenses. Compare
`Docket No. 399-9 at 21-31 with Docket No. 510-53 at 25-26. None of Defendants’ dozen or so
`other witnesses did either. For example, Terix’s 30(b)(6) deponent on the license defense
`11
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`Case No. 5:13-cv-03385-PSG
`ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
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`For the Northern District of California
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`United States District Court
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`Case5:13-cv-03385-PSG Document611 Filed05/05/15 Page12 of 14
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`Instead, Defendants argue that the OpenSolaris source code that Oracle posted online overlaps with
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`source code inherent to Solaris versions 7-10. According to Defendants, this means that the CDDL
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`applies to all versions of Solaris and their associated patches. But as discussed above, this does not
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`change the fact that the BCL and SLA contain integration clauses that preclude any later agr