HT-2021-000363 - [2025] EWHC 532 (TCC)

Reliance is placed by the defendants on the availability of software products for z/OS mainframes by independent software vendors (“ISVs”) as relevant context to the ICA. Such products can replace or extend the functionality of IBM programs that operate on the mainframe, or provide new functionality. Mr Stephens explained that these ISVs typically license their software and provide ongoing support, usually requiring regular payments for licensing fees and support. In cross-examination, Mr Swanson agreed that in 2013 it was common practice for ISVs to share customer applications by shipping load modules in link-edited form.

This factual matrix is acknowledged but it does not assist in the proper construction of the ICA for the purpose of the issues in dispute. As set out in the extract from the Licensed Program Specification above, IBM confirmed that distribution of customer load modules was permitted, provided that: (i) it was in connection with authorised use of z/OS (that is, in accordance with the terms of the relevant ICA) and (ii) each stub was included in its entirety, including IBM copyright statements. The sharing and distribution of such products for use on the z/OS system may be widespread and is not necessarily prohibited but any use of the z/OS system remains subject to the terms and conditions of the ICA.