|The 1986 AT&T-BSD Agreement
Monday, November 24 2003 @ 07:42 AM EST
Feast your eyes on this, everyone. Harlan Wilkerson has come through again, and he has gotten a copy of the 1986 BSD-AT&T License. Kudos, Harlan!
To help with context, you may wish to check the famous Levenez "family tree." Note that it is not identical to the SCO version, it is not 100% clear and thus can lead to misunderstandings, and we'll be commenting on all that with specificity soon. However, it is useful for a general overview.
With the aid of a magnifying glass, you can follow
the relationship between 32V, SysV and BSD.
THIS LICENSE AGREEMENT is made and entered into this 4th day of March 1986, by and between THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California corporation and AMERICAN TELEPHONE AND TELEGRAPH COMPANY, a New York corporation ("AT&T"), having its principal office at 550 Madison Avenue, New York, New York 10022.
WHEREAS, AT&T and/or its Subsidiary, AT&T Information Systems Inc., is the proprietor and owner of UNIX* 32V Time-Sharing System, Version 1.0 (hereinafter "32V"), and
WHEREAS , The Regents of the University of California ("the University") is the proprietor and owner of enhancements and additions to 32V, which together with parts of 32V comprise computer programs and documentation entitled Fourth Berkeley Software Distribution ("4 BSD"); and
WHEREAS, the University has issued releases of 4 BSD entitled "4.1 BSD", "4.2 BSD" and "4.3 BSD"; and
WHEREAS, 4.1 BSD has been licensed by the University to AT&T pursuant to a License Agreement effective March 9, 1983 relating to Fourth Berkeley Software Distribution; and
WHEREAS, 4.2 BSD and 4.3 BSD include some material contributed by persons other than the agents, officers, and employees of the University (hereinafter "Other Contributors") and these Other Contributors are identified within 4.2 BSD and 4.3 BSD; and
WHEREAS, AT&T, on behalf of itself and its Subsidiaries, desires to obtain from the University, and the University desires to grant to AT&T and its Subsidiaries, a license to use the computer programs and documentation comprising 4.2 BSD and 4.3 BSD:
NOW, THEREFORE, in consideration of the mutual covenants, conditions and terms hereinafter set forth, and for other good and valuable consideration, the University hereby grants to AT&T, for itself and its Subsidiaries, the nonexclusive right to use and to sublicense 4.2 BSD and 4.3 BSD (in whole or in part, with or without modification, and whether or not in conjunction with any other software), the components of which are described on the attached Schedules, subject to the terms and conditions of this Agreement and AT&T hereby accepts such license solely upon such terms and conditions and agrees to be responsible for the compliance by its Subsidiaries of all the terms of this Agreement as if the name of the Subsidiary were substituted for that of AT&T herein.
1. Subsidiaries. "Subsidiary of AT&T" means a corporation or other legal entity (i) the majority of whose shares or other securities entitled to vote for election of directors (or other managing authority) is now or hereafter controlled by AT&T either directly or indirectly; or (ii) the majority of the equity interest in which is now or hereafter owned and controlled by AT&T either directly or indirectly; but any such corporation or other legal entity shall be deemed to be a Subsidiary of AT&T only as long as such control or ownership and control exists.
2. Term. The term of this Agreement shall commence on the effective date hereof and continue unless and until terminated as hereinafter set forth. AT&T may terminate this Agreement upon thirty (30) days written notice to the University. This license shall terminate thirty (30) days after notice from the University to AT&T that AT&T is in breach of this Agreement unless within that time AT&T gives notice satisfactory to the University that such breach has been corrected. Upon termination, AT&T shall immediately destroy 4.2 BSD and 4.3 BSD and all copies thereof including any copies contained in any storage apparatus or medium and shall cease use and sublicensing thereof.
3. Fees. The distribution fee for this license and delivery of one physical copy of 4.2 is seven hundred fifty dollars ($750.00). The distribution fee for this license and delivery of one physical copy of 4.3 BSD is one thousand dollars ($1,000.00). AT&T may obtain additional copies of 4.2 BSD and 4.3 BSD and new releases of 4 BSD which the University may choose to make available under the terms of this Agreement by paying an additional distribution fee determined by the University. Distribution fees are due and payable in advance. Distribution fees do not include local, state or federal taxes, and AT&T hereby agrees to pay all such taxes as may be imposed upon AT&T or the University with respect to the distribution, possession, use, or sublicensing of 4 BSD pursuant to this Agreement.
4. Title. AT&T agrees that 4.2 BSD and 4.3 BSD contain proprietary software belonging to the University. AT&T shall have no right, title or interest in or to such proprietary software except as expressly set forth in this Agreement.
5. AT&T Proprietary Software. The University agrees that 4.2 BSD and 4.3 BSD contain proprietary software belonging to AT&T and licensed by AT&T as 32V.
6. Duplication. AT&T has the right to duplicate 4.2 BSD and 4.3 BSD as required pursuant to its use and sublicensing as allowed by this Agreement.
7. Sublicensing. AT&T and its Subsidiaries may sublicense the use of 4.2 BSD and 4.3 BSD, in whole or in part, to third parties ("sublicensees"). Sublicensees may further sublicense to third parties, directly or through distributors, object code for 4.2 BSD and 4.3 BSD. Such sublicensing may be implemented using the agreements and procedures acceptable to AT&T for its current release of UNIX operating systems, including the use, as AT&T deems appropriate, of agreements for object code that an end user accepts by opening the package containing the object code. Such agreements shall include, or incorporate by reference to other materials furnished to sublicensees, the covenants and restrictions of paragraphs 8, 9 and 10 of this Agreement. Material so sublicensed may be either modified or unmodified. Any such sublicensor may, but need not, charge a fee for such sublicenses.
8. Proper Credit and Recognition. In the use of any part of 4.2 BSD and 4.3 BSD, AT&T will give appropriate credit to the University and the Electrical Engineering and Computer Sciences Department at the Berkeley Campus of the University of California and to the Other Contributors for their roles in its development and will require sublicensees to give such credit. If AT&T is providing documentation similar to that which is provided with 4.2 BSD and 4.3 BSD, notices similar to those included in that documentation suffice to satisfy this requirement. If AT&T is providing new documentation, this requirement will be satisfied if each document includes the following statement: "This software and documentaiton is based in part on the Fourth Berkeley Software Distribution under license from The Regents of the University of California. We acknowledge fhe following individuals and institutions for their role in its development: [insert names of individuals and institutions which appear in the documentation provided to AT&T as part of 4.2 BSD and 4.3 BSD for those portions of said Distribution used by AT&T]".
9. Lack of Warranty 4.2 BSD and 4.3 BSD are provided by the University and the Other Contributors on an "As Is" basis. Neither the University nor the Other Contributors warrant that the functions contained in 4.2 BSD and 4.3 BSD will meet AT&T's requirements or will operate in the combinations which may be selected for use by AT&T, or that the operation of 4.2 BSD and 4.3 BSD will be uninterrupted or error free. NEITHER THE REGENTS OF THE UNIVERSITY OF CALIFORNIA NOR THE OTHER CONTRIBUTORS MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE CONDITION OF 4.2 BSD AND 4.3 BSD, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
10. Lack of Maintenance Services. AT&T understands and agrees that the University and the Other Contributors are under no obligation to provide either maintenance services, update services, notices of latent defects, or correction of defects for 4.2 BSD and 4.3 BSD.
11. Patent, Trade Secret and Copyright Infringement. If the University gives formal written notice to AT&T that there has been a claim, or is likely to be a claim, that 4.2 BSD and 4.3 BSD infringe a U.S. patent, trade secret, or copyright, AT&T agrees to either:
(a) immediately cease use of, cease sublicensing of, and destroy the original and all copies of that part of 4.2 BSD and 4.3 BSD which is, or is likely to become, subject to the claim of infringement; or
(b) procure from claimant, or potential claimant, of infringement, the continued right to use and sublicense that part of 4.2 BSD and 4.3 BSD which is, or is likely to become, subject to the claim of infringement; or
(c) procure from the University, which procurement shall be granted at the sole discretion of the University, the continued right to use and sublicense that part of 4.2 BSD and 4.3 BSD which is, or is likely to become, subject to the claim of infringement.
12. Limitation of Liability. AT&T agrees to indemnify, defend, and hold harmless the University and the Other Contributors, their successors, agents, officers, and employees, either in their individual capacities or by reason of their relationship to the University or the Other Contributors, with respect to any expense, claim, liability, loss or damage (including any incidental or consequential damages) either direct or indirect, whether incurred, made or suffered by AT&T or any of its sublicensees or by other third parties (including, but not limited to, the sublicensees of AT&T's licensees), in connection with or in any way arising out of the furnishing, sublicensing, performance or use of 4.2 BSD and 4.3 BSD in connection with this Agreement. AT&T's obligations under this paragraph include, but are not limited to, its obligation to indemnify, defend, and hold the University and the Other Contributors, their agents, officers, and employees harmless in the case of any claim of copyright, trade secret, or patent infringement based in any manner on AT&T's use of sublicensing of 4.2 BSD and 4.3 BSD.
13. Legal Expenses In case legal action is taken by either party to enforce this Agreement, all costs and expenses, including reasonable attorney's fees, incurred by the prevailing party in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions, or provisions hereof shall be paid by the other party.
14. Severability. If any part, term or provision of this Agreement shall be held illegal, unenforceable or in conflict with any law of a federal, state of local government having juridsdiction over this Agreement, the validity of the remaining portions or provisions shall not be affected thereby.
15. Governing Law. This Agreement shall be construed and enforced according to the law of the State of California.
16. Paragraph Headings. The headings herein are inserted for convenience only and shall not be construed to limit or modify the scope of any provision of this Agreement.
17. Entire Agreement. This Agreement contains all the agreements, representations, and understandings of the parties hereto and supersedes any previous understandings, commitments or agreements, oral or written.
18. Authority. Each of the undersigned warrants that he/she has the authority to bind to this Agreement the party which he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
Roy L. Towers, Jr.
Title: Contract Administrator
Date: 4 March 1986
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
Title: Manager, UNIX [tm] Software Licensing
Date: Feb. 26, 1986
* Trademark of AT&T Bell Laboratories
|Authored by: Anonymous on Monday, November 24 2003 @ 09:35 AM EST|
Looks like a blanket cross-licensing agreement for BSD 4.x and any ATT material
that is in it. The thing that sticks out most is that UCB seems to have
explicitly rid itself of most responsibilities and obligations, whereas ATT has
I'd guess that means SCO has no case with respect to the BSD's, which we
already assumed, but I wonder what the rest of the settlement terms were.
[ Reply to This | # ]
|Authored by: SkArcher on Monday, November 24 2003 @ 10:00 AM EST|
|Can anyone tell me what the line between Linux 2.2.16 (June 7th 2000) and|
Unixware 7.1.1+LKP represents. Is it just the Linux Kernel personalities stuff,
or was there any other cross filtration?
Likewise, what is represented by the lines from AIX to the Linux lines in 2002?
Under what agreement was this exchange licensed?
Lastly, what is the IRIX code that moves into Linux in July/August 2002?
[ Reply to This | # ]
|Authored by: linuxbikr on Monday, November 24 2003 @ 10:02 AM EST|
|Fun stuff, as always.
What is fascinating to see on the Unix "family tree"
are the points where code from Irix and Aix (XFS from SGI and JFS, RCU from IBM)
wind up in the Linux 2.4 kernels. On the diagram, you can SEE where those code
drops occur. Looking at the tree, it is easy to understand how SCO could assume
that the code in Linux belongs to them given the Irix and AIX heritage.
of interest is the code from 4.4BSD-Lite dropping into Linix. Again, looking at
this license agreement, you can see the tenuous grasp that SCO is trying to
maintain that the BSDs somehow owe them. Wrong, but fun to see that ephemeral
connection in diagram form.
Just out of curiousity, anyone know what the
Mach 2 connection to Linux is?
[ Reply to This | # ]
|Authored by: brenda banks on Monday, November 24 2003 @ 10:12 AM EST|
|AT&T hereby accepts such license solely upon such terms and conditions and|
agrees to be responsible for the compliance by its Subsidiaries of all the terms
of this Agreement as if the name of the Subsidiary were substituted for that of
this just kinds of jumps off the page
[ Reply to This | # ]
|Authored by: SteveS on Monday, November 24 2003 @ 10:17 AM EST|
|Talk about a snake eating its own tail..
11. Patent, Trade Secret
and Copyright Infringement. If the University gives formal written notice to
AT&T that there has been a claim, or is likely to be a claim, that 4.2 BSD
and 4.3 BSD infringe a U.S. patent, trade secret, or copyright, AT&T agrees
Would this mean that if
SCO tries to claim infringement against BSD, that they would have to stop using
that part of SysV that is claimed to be in infringement so they would not have a
claim of infringement...I'm getting a headache...
(a) immediately cease use of, cease sublicensing of,
and destroy the original and all copies of that part of 4.2 BSD and 4.3 BSD
which is, or is likely to become, subject to the claim of infringement; or
(b) procure from claimant, or potential claimant, of infringement, the
continued right to use and sublicense that part of 4.2 BSD and 4.3 BSD which is,
or is likely to become, subject to the claim of infringement; or
(c) procure from the University, which procurement shall be granted at the
sole discretion of the University, the continued right to use and sublicense
that part of 4.2 BSD and 4.3 BSD which is, or is likely to become, subject to
the claim of infringement.
[ Reply to This | # ]
|Authored by: tcranbrook on Monday, November 24 2003 @ 10:35 AM EST|
Legal risks of open source under scrutiny, is written by
a lawyer. Several really serious errors jump out at me, that we should take
special care to be clear about with the GrokLaw readers and in the GrokLaw
public documents created by this group.
"The GPL states that the user of
an open source program “must cause any work that you publish or
distribute that in whole or [in part] contains or is derived from the program or
any part thereof to be licensed as a whole, at no charge, to all third parties
under the terms of the licence”.
It is NOT the use of an open source
program that causes this derivitave clause to take effect. It is the use
of a piece of open sourc CODE. This confusion between using the program
and using the code seems very common amoung non programers. And SCO, as well as
MS, is using the confusion to create a false understanding of the effect of GPL
in the enterprise.
"The GPL is not typically enforced by a physical
act of consent such as a signature or a tick on an online form. This may make
agreement to the conditions subject to legal dispute.
Also, bearing in mind
the zero or nominal fee attached to the acquisition of OSS, a question mark
exists over whether a “valuable consideration” has actually been transferred, as
required by contract law."
This is the reason that we must be clear
that the GPL is NOT a contract, it is a license. You don't have to agree to it.
But if you don't, you are still bound by the copyright law. You are prohibited
from using someones elses copyrighted code in your program by the copyright laws
without the GPL. The GPL is NOT a contract. It is a license, a permission, to
perform specific actions that otherwise would be illegal. Violating the GPL is
NOT a breach of contract law, it is a breach of copyright law.
[ Reply to This | # ]
|Authored by: smtnet1 on Monday, November 24 2003 @ 10:41 AM EST|
| "5. AT&T Proprietary Software. The University agrees that 4.2 BSD and
4.3 BSD contain proprietary software belonging to AT&T and licensed by
AT&T as 32V.|
Didn't Caldera Open Source 32V under a BSD
I think this blows away the SCO claim to own BSD
that duplicate BSD code in SCO UNIX and Linux does have a right to be there. I
am assuming that the code that SCO claim was copied from UNIX to Linux is in
fact BSD code taken from BSD 4.4 that is also in 32V.
This would explain
why SCO will show journalists and analysts their "copied code" but are still
refusing to show IBM in court. I cant wait until they are compelled to show the
[ Reply to This | # ]
|Authored by: roxyb on Monday, November 24 2003 @ 10:58 AM EST|
|Be warned about the family tree, even though it is correct
in 90% of the cases,
it sometimes makes no difference
between derivates, specifications and limited
An example of this is the arrow from UNIX
System V Release 4 to
OSF/1 in 1990. What happened is that
OSF was formed in part because of
licensing fears, and all
members agreed that a System VR2 license was OK to
a pre-requisite for OSF/1 (as this would at this time also
members to use the BSD code) but that the
specifications that the OSF/1 should
adhere to was the
SVR3.2 (or rather the SVID) specification and that some
compatible technology should be used (for example the
Mentat STREAMS whicg
didn't need a license from AT&T).
Furthermore, POSIX and X/Open compliance
as well as using
the (at that time) latest and hottest technology for
distributed, non-uniform computing, the MACH Microkernel
(it ended up with a
monolithic microkernel, with the
split-up micro-kernel only being used at the
OSF RI and
Another equivalent thing is the arrow pointing from IRIX
6.5.16 to Linux, which obviously to informed readers
indicates the XFS and
some related technology dropped into
Linux and not that Linux 2.4/2.5 is
successor to IRIX.
Again, we need to understand when the family tree speaks
about different things, otherwise it could become very
that I'm nit-picking, but I would hate having SCO
use stuff like this in
I'm Still Standing...
[ Reply to This | # ]
- Family Tree - Authored by: PJ on Monday, November 24 2003 @ 11:55 AM EST
|Authored by: PJP on Monday, November 24 2003 @ 11:22 AM EST|
|Ok, so what I see is a license agreement for AT&T and its subsidiaries to|
use copyrighted BSD code.
Nowhere is there any mention of "and its successors".
In fact there is explicit language in the section on subsidiaries which limits
the agreement to subsidiaries which remain under AT&T control.
So as I read this, SCO has absolutely no right to use any of the BSD components
other than under the UCB BSD license terms. It certainly does not
"own" that code.
I suspect this is only one part of the agreement, there should be a
corresponding piece absolving UCB of claims of AT&T code enfringement. I
would also expect to see a complete list of the contentious code from both sides
listed if both sets of lawyers were doing their jobs (and I really think they
[ Reply to This | # ]
|Authored by: Thanatopsis on Monday, November 24 2003 @ 12:08 PM EST|
| Eweek has an
article titled "Paper Calls SCO's Position 'Desperate'. |
Keep an eye to
Moglen's latest paper to be posted today.
Also worth a read is
Molgen's previous paper "Questioning SCO: A Hard Look at Neblous Claims"
available in PDF here
using namespace ianal;
[ Reply to This | # ]
|Authored by: Anonymous on Monday, November 24 2003 @ 02:07 PM EST|
I sent this license to PJ and the Groklaw gang because of some of the
remarks made in SCO's recent press release here.
came into possession of this license quite by accident while researching the
BSDi suit. That suit was filed in the United States District Court for the
District of New Jersey. This license was attached to a change of venue
You should take note of this part: "15 Governing Law This
Agreement shall be construed and enforced according to the law of the State of
California." It's non-exclusive and there is no mention of it being transferable
Some of the state law issues it raised were later
incorporated into a case that the Regents brought in Superior Court of
California - County of Alameda. That case didn't cite copyright violation among
any of it's Cause[s] of Action, because after all, AT&T had this license to
use, modify, and sublicense the BSD code. The Federal Court in New Jersey would
have been the proper venue to bring any copyright counterclaims against USL.
This latter case was a contract or licensing dispute.
I'm hoping the
license will find a permanent home over at Dennis Ritchie's site. Maybe it will
help dispel the myth that the BSD code used in SVR4 was stolen or somehow
misappropriated. My opinion on that is sort of like another person's that I've
read somewhere (perhaps Greg Lehey?), before I could say for sure that the
copyright notices were removed from the individual BSD files, I would first have
to see the original files with all of them intact. The Regents did say that USL
had failed to include their copyright notice on System V materials and manuals.
They also mentioned that some of the sublicenees like SGI, SCO, and Intel
had failed to include them as well. These were really contract or licensing
matters, that didn't affect any copyright protections the Unversity had in the
Notice that AT&T has a non-exclusive license for the
BSD portion of the materials, but that much of the older code still depends on
32V. Caldera has re-licensed 32V under a four-point BSD-style license - which
includes a Caldera advertising clause. The other interesting thing is that
they can also sublicense it (e.g. in Systen V) under the same terms and
conditions used for their current UNIX SVRX license. Of course IBM has no
remaining confidentiality obligations with regard to either the 32V or the BSD
sources under the terms of the Caldera Ancient Unix, or the System V license.
There is perhaps a case to be made concerning the omission of the Caldera
advertising clause. I'd be happy to answer that if the issue ever comes up.
Here's the relevant bit from the press release:
"During the past seven
months, our company, along with Boies, Schiller & Flexner, has uncovered a
number of substantial software code issues as they pertain to our UNIX
intellectual property and Linux," said Darl McBride, President and CEO, The SCO
Group, Inc. "By far the most important asset of this company is our ownership of
the UNIX operating system and today we are investing in the protection and
future of UNIX. Boies, Schiller & Flexner is now moving beyond the contract
issues we have with IBM. The firm will be enforcing and defending SCO's
intellectual property rights, including the protection of our UNIX System V
source code and our copyrights that were reaffirmed as a result of the BSDI
If Mr. McBride is refering to 32V, he is
wrong in stating that the settlement had any bearing on it's real status. It was
an uncopyrighted trade secret so far as the record in the BSDi case reveals, and
Caldera subsequently made it open source or placed it in the public
Here are some extracts from USL's responses to BSDi's second
set of Interrogatories:
Indentify all persons
or entities who have been licensed at any time by Western Electric, AT&T, or
USL under the UNIX/32V source code.
maintains original license agreements and related corresponence at a central
repository in Greensboro N.C., which generally contains correspondence related
to licenses, amendments or modifications to such licenses and correspondence
with licensees. Pursuant to Rule 33(c), USL will provide access to
non-privileged repository documents for inspection and copying, from which the
answer to this interrogatory may be obtained or derived. Included among such
documentation are electronic data bases which comprise USL's best, although
incomplete, list of such information, and which are known to contain
innaccuracies. USL shall make such data bases available at the same time in
accordance with Rule 33(c)."
That data base even failed to list
some of the System V source code licensees. There are a couple of examples
given among the BSDi exhibits. The Berkeley 32V source code license was also not
listed (see the amicus at Dennis Ritchie's site). At the time there were over
5700 organizations with one or more UNIX licenses. This appears to be the same
(innacurate) information that Darl McBride and others refer to when they say
they have licenses with 6000 organizations and over 30,000 licensees today. If
Darl is aware of the terms of the settlements, perhaps he is aware that there is
no accurate list of exactly who posesses the System V trade secrets according to
the record in BSDi.
Identify any file in the
UNIX/32V source code that at anytime has been distributed, whether pursuant to
license or otherwise, without a copyright notice.
All files contained within the UNIX/32V have been distributed by
AT&T or USL without a copyright notice pursuant to the license agreements
referenced in response to interrogatory number 1, all of which restrict the
licensees right to make copies of such source code and limit the distribution of
derivative works to other UNIX/32V source code licensees."
If 32V is in
the public domain, they can ask for the advertising clause to be honored - but
they can hardly pursue any licensing claims.
Most people thought that
they were going to reopen the matter of the BSD settlements because of SCO's
remarks in this and other press releases. I think that the settlement merely
"reaffirmed the T&C's under which AT&T and it's subsidiaries could
license and use the copyrighted portions of the BSD material in their products
like SVRX. Certainly nothing restricts anyone's rights to use any of the BSD's
based on the 4.4-Lite releases.
Well this has gotten way to long. I hope
it proves to have been useful to some of the readers.
[ Reply to This | # ]
|Authored by: jmccorm on Monday, November 24 2003 @ 02:34 PM EST|
|That's probably the BEST THING that I got out of the entire family tree! Thanks|
very much for the smile.
[ Reply to This | # ]
|Authored by: Ric on Wednesday, November 26 2003 @ 06:38 PM EST|
As I understand all of this, part of the scoFUD is that Linux provides no
indemnification to the _user_, that is, the end-licensee.
The way I read the Berkeley/ATT License, the only indemnification that is
provided by this agreement is to the _Licensor_, that is, Berkeley, and it
leaves ATT completely responsible.
A quick scan of standard, old school, software licenses that I have floating
around, including some of the old ones for software that _I_ have written, also
only seems to indemnify the Licensor, not the licensee.
So, when did this whole concept of indemnification to the _licensee_ start? With
SCO, I assume.
[ Reply to This | # ]