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

The defendants rely on the terms of Licensed Program Specifications as giving permission for the redistribution of customer applications incorporating IBM CSECTs and other code fragments to third parties.

Specifications are defined in clause 1.3 as:

“information specific to a Product … ICA Program Specifications are in a document entitled "Licensed Program Specifications".”

Clause 4.1.2 sets out the Customer’s Additional Obligations in respect of each ICA Program, including agreement to:

“a.

comply with any additional or different terms in its Licensed Program Specifications or an Attachment or Transaction Document.”

The Licensed Program Specifications relied on by the defendants include Language Environment Vendor Interfaces – z/OS v 1.13 (SA22-7568-12). That Licensed Program Specification states that IBM z/OS Language Environment provides common services and language specific routines in a single runtime environment for languages including C, C++, COBOL and PL/I. It is the prerequisite runtime environment for applications generated with IBM compiler products.

The Licensed Program Specification describes in detail the steps involved in using the services provided by Language Environment, including the conventions required to call the services, and contains sample application programs to illustrate various programming techniques. It also contains the following permission notice:

“This book includes information about certain callable service stub and linkage-assist (stub) routines contained in specific data sets that are intended to be bound or link-edited with code and run on z/OS systems. In connection with your authorized use of z/OS, you may bind or link-edit these stubs into your modules and distribute your modules with the included stubs for the purposes of developing, using, marketing and distributing programs conforming to the documented programming interfaces for z/OS, provided that each stub is included in its entirety, including any IBM copyright statements ...”

The words are clear that, contrary to the defendants’ submissions, a licensee is permitted to distribute customer load modules incorporating IBM CSECTs, other code fragments and routines but such permission is limited to authorised use of z/OS, which requires a licence. Furthermore, such distribution must be for the purposes of developing, using, marketing and distributing programs conforming to the documented programming interfaces for z/OS, necessitating the IBM Language Environment runtime for which an appropriate licence is required. Finally, the stipulation that IBM copyright statements must be included in the IBM stubs incorporated into the load module demonstrates that use of such IBM materials remains subject to licence.

It follows that this explicit permission notice does not change the above analysis as to the applicability of the ICA permission and restriction provisions to customer applications that have been compiled and link-edited.

The defendants also place reliance on the Notices in the Licensed Program Specifications (“LPS”) which state:

“… Any reference to an IBM product, program, or service is not intended to state or imply that only that IBM product, program, or service may be used. Any functionally equivalent product, program, or service that does not infringe any IBM intellectual property right may be used instead…”

This does not advance the arguments one way or another; although it indicates that functionally equivalent products, programs or services may be used, the proviso is that they do not infringe any IBM intellectual property right. Thus, it does not answer the question whether there would be any infringement or breach of the licence conditions by use of any alternative service. To answer that question, it is necessary to refer to the terms of the ICA, which sets out the basis on which use of the ICA Programs is permitted.