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“internal use” in furtherance of its license to adapt, reproduce,
and distribute the computer software in object code form. Pertinent
provisions of the source code license are as follows:
19. LICENSE GRANT FOR SOURCE CODE
(a) MS grants to COMPANY a nonexclusive, personal,
nontransferable, nonassignable license during the term of
the Agreement to use and modify the source codes of the
Products (“Source Code”) * * *
(b) The license granted hereunder shall extend to
the Source Code for any new releases to each Product as
are supplied by MS and accepted by COMPANY. * * *
(c) COMPANY hereby conveys to MS all right, title
and interest to any modifications made to the Source Code
by COMPANY. MS grants to COMPANY non-exclusive marketing
and distribution rights to the object code version of any
modifications made to the Source Code by COMPANY * * *
(d) Notwithstanding anything to the contrary
contained herein, COMPANY shall not reproduce, duplicate,
copy or otherwise disclose, distribute or disseminate
Source Code (code or listing) in any media except for
COMPANY’s own internal use by COMPANY’S full-time
employees on a need-to-know basis on COMPANY premises. *
* *
The foreign OEM’s paid royalties for the source code in addition to
other royalty payments.
In some instances, petitioner provided a foreign OEM with an
OEM adaptation kit (OAK), which contained a copy of the product’s
object code, sample adaptation code, and related documentation. An
OAK assisted foreign OEM’s to adapt operating systems to personal
computers. Whether a foreign OEM needed the adaptation code
depended on its particular computers.
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