"Unable to find significant similarities in the actual code, USL points to these same standard file names and mnemonics as evidence of copyright infringement, even though USL forfeited any copyright protection in the 32V code long ago, by making it widely available with no copyright notice. Even if USL had not forfeited copyright protection in the 32V code, it could not show copyright infringement, since mnemonics and common industry standards are not protectible under copyright law and their use does not prove illicit copying.

"As for the actual code, out of the over 1.5 million lines of code in BSD/386, USL's expert relies solely on a few lines interspersed in two functions, ignoring the fact that instructions on how to implement those functions are contained in various textbooks. . . . Given the specific instructions available in such books, the trivial similarities relied on by USL are to be expected and prove neither copying nor use of the 32V code.

"In short, with this motion, USL seeks to exclude a legitimate competitor from the marketplace by attempting to invoke a nonexistent copyright, by relying on commonly used industry standards as evidence of copying, and by falsely claiming generally known information as its trade secrets."

Their allegation is supported by USL's answers to these interrogatories. Remember that the BSDi case was about an educational license, not a commercial one, such as the kind IBM signed. Note USL's answers to interrogatories numbers 5 and 6:

"Interrogatory No. 5 -- State whether or not the UNIX/32V source code, or any portion thereof, has at any time been distributed by AT&T or USL, pursuant to license or otherwise, without a copyright notice.

"Response No. 5 -- AT&T and USL have distributed the UNIX/32V source code without a copyright notice pursuant to the license agreements referenced in response to Interrogatory No. 1, all of which restrict the licensee's right to make copies of such source code and limit the distribution of derivative works thereof to other UNIX/32V source code licensees.

"Interrogatory No. 6 -- Identify each file in the UNIX/32V source code that at any time has been distributed, whether pursuant to a license or otherwise, without a copyright notice.

"Response No. 6 -- All files contained within the UNIX 32V source code have been distributed by AT&T or USL without a copyright notice pursuant to the license agreements referenced in response to Interrogatory No. 1, all of which restrict the licensee's right to make copies of such source code and limit the distribution of derivative works thereof to other UNIX/32V source code licensees."

By 1992, when this document was written, the copyright laws had changed, but earlier, before 1989, when the distribution of this source code was admittedly done, it was under previous copyright law. You can read up on that on the US Copyright Office's Copyright Basics page:

"Copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection. . . . Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989."

In his ruling on USL's Motion for Preliminary Injunction, the judge said that USL had "failed to demonstrate a likelihood that it can successfully defend its copyright in 32V":

"1. Copyright Infringement

"Plaintiff claims that BSDI has violated Plaintiff's copyright in the UNIX source code and, unless I enjoin further violations, BSDI's continuing violations will irreparably harm Plaintiff. The first factor to be considered is whether Plaintiff has a reasonable probability of prevailing on the merits of this claim.

"In order to prevail, Plaintiff must prove that it has a valid copyright in the UNIX code. Plaintiff's chief difficulty here is the 'Publication doctrine.' The publication doctrine denies copyright protection to works which the copyright owner 'publishes,' unless the owner has properly affixed a notice of copyright to the published work. This doctrine has suffered steady erosion over the years, and it now applies in full force only for works published prior to January 1, 1978. For works such as 32V (published in 1978), which were published after that date but before March 1, 1989, the doctrine is subject to the escape provisions of 17 U.S.C.  405(a) and the common-law 'limited publication rule.' For works published after March 1, 1989, the publication doctrine has been eliminated by the Berne Convention Implementation Act, 102 Stat. 2857 (1988).

"Because Plaintiff copyrighted 32V in 1992, Plaintiff benefits from a statutory presumption of validity and BSDI has the burden of proving otherwise. Williams Electronics, Inc. v. Arctic International, Inc., 685 F.2d 870, 873 (3rd Cir. 1982). BSDI seeks to carry this burden by proving that AT&T and Plaintiff have widely published 32V without proper notice.

"Publication is defined as:

the distribution of copies or phono records of a work to the public by sale or other transfer of ownership, or by rental lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

"17 U.S.C.  101. Version 32V source code has now been distributed, without notice, to literally thousands of licensees. Consequently, Plaintiff can have no valid copyright on 32V unless it can fit within one of the statutory or common law escape provisions.

"The three statutory escape provisions are listed in section 405(a). These provisions relieve a copyright owner from the harsh consequences of noticeless publication if the owner (i) omitted the notice from a 'relatively small number of copies;' (ii) registers the work within five years of publication, and then makes a 'reasonable effort' to add notices to the noticeless copies already distributed; or (iii) proves that a third party omitted, notice in violation of an express agreement in writing 17 U.S.C  405(a)(1)-(3).

"Plaintiff cannot avail itself of any of these provisions. Notice was omitted from thousands of copies of 32V; no contractual agreements require the licensees to affix notice; Plaintiff failed to copyright 32V until 1992, well over five years after 32V was published; and Plaintiff has not yet made reasonable efforts to add notices to the many noticeless publications of 32V. Consequently, Plaintiff must try to fit within the common-law doctrine of limited publication.

"Under the common-law doctrine of limited publication, a publication will not divest an author of copyright protection if the author 'communicates the contents of a manuscript to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale. . .' Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F. Supp. 1190, 1197 (D. Del. 1974) (quoting White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952), cert. denied, 343 U.S. 957 (1952); see also American Visuals Corq. v. Holland, 239 F.2d 740, 744 (2d Cir. 1956) (quoting White v. Kimmell). There is some question as to whether the doctrine of limited publication survived the 1976 amendments to federal copyright law, but the weight of authority holds that it has. See Nimmer on Copyrights,  4.13[B](1992), and the cases cited therein ('the doctrine of limited publication continues under the current Act').

"For the present dispute, the key criterion is that the alleged copyright owner must only have distributed the works to a 'Selected group.' To qualify as a 'selected group,' those receiving the work must be more than just customers self-selected by their desire to purchase the work. Otherwise, 'all the purchasers of the work' would qualify as a 'selected group,' and all publications would be limited publications. For example, if a programmer sells software to anyone willing to meet the asking price, then the programmer can hardly be said to have communicated the work to a selected group. See Brown v. Tabb, 714 F.2d 1088, 1092 (11th Cir. 1983) (the group containing all of the potential purchasers of a jingle was not a 'selected group'); Academy of Motion Picture Arts v. Creative House Promotions, 944 F.2d 1446 (9th Cir. 1991) (Oscar winners are not a selected group because Plaintiff did not distribute its Oscars generally to the public). Situations where courts have found selected groups include distribution of manuscripts by authors to a small collection of friends; of floor plans to contractors so they can prepare bids; of advance copies of works to colleagues for criticism or review; of samples to potential customers; and of promotional material to dealers. Nimmer on copyright,  4.13[A] (1992).

"As the above examples suggest, the traditional scope of the limited publication doctrine is narrow. But courts have shown a tendency to expand the scope of this doctrine when applying it to computer products. See Nimmer on copyright,  4.13[A][1], [2). For example, several courts have declined to find a publication where a copyright owner has communicated support materials to customers buying computers. One such case is Hubco Data Products Corp. v. Management Assistance Inc., 219 U.S.P.Q. 450 (D. Idaho 1983), where the court faced the issue of whether the plaintiff computer manufacturer had published the operating system distributed with its computers. The computers (complete with operating systems) apparently were available to anyone willing to pay their price, but the court none the less found only a limited publication of the operating system. The court reasoned that the 'operating systems were only offered to owners of [plaintiffs) computers.' Id. at 455. See also Data General Corp. v. Digital Computer Controls, Inc., 188 U.S.P.Q. 276 (Del. Ch. 1975) (schematic drawings were the subject of a limited publication because they were only distributed to those who bought computers).

"The limited-publication variations endorsed in Hubco and Data General, even if valid, are of no help to Plaintiff here. Version 32V was not distributed as an ancillary communication supporting the sale of a computer -- 32V was the actual product itself. Consequently, the only question is whether AT&T and Plaintiff limited 32V's distribution or offered it to whomever could pay.

"Plaintiff argues that it has only distributed 32V to three select groups of licensees: educational organizations, U.S. government agencies, and carefully-screened corporate entities. Although the former two groups could conceivably qualify as 'selected,' the latter can qualify only if the screening process is suitably restrictive. According to depositions of Plaintiff's personnel, the screening includes investigating the kind of code a potential customer seeks (source or binary); detailed information about the nature of the customer's business; the customer's financial ability to pay; and whether the customer is in a country that protects trade secrets. Plaintiff needs all of this information to assess three features of its prospective customers: which product is best for the customer, whether the customer can pay, and whether the customer will take good care of Plaintiff's intellectual property, (Kennedy Decl., Ex. C at 1622, Ex. D at 111-12; Pl.'s Reply Br. at 10.)

"Even accepting this description of Plaintiff's screening process as true, it is hard to see how the screening would yield a selected group of corporations within the meaning of the doctrine of limited publication. Plaintiff essentially seeks what any lessor of property seeks: someone who will take good care of the property and pay the bills as they fall due. If this were enough to create a selected group, then practically anyone who leased property would belong to a selected group.

"The copyright laws in effect prior to 1989 do not allow such expansive protection against the consequences of noticeless publication. As quoted above, publication includes distributing copies by 'renting, leasing, or lending.' 17 U.S.C.  101. Under Plaintiff's construction of the doctrine of limited publication, 'renting, leasing, or lending' would not constitute publication whenever the owner of the copyright screened out irresponsible customers. It seems unlikely that Congress drafted this section with this purpose in mind.

"Consequently, I find that Plaintiff has failed to demonstrate a likelihood that it can successfully defend its copyright in 32V. Plaintiff's claims of copyright violations are not a basis for injunctive relief."

As the judge said, there are consequences of noticeless publication. If USL could not prove it owned the copyrights back then, what exactly did Novell get from USL when it purchased the code from USL? And what copyrights, if any, could SCO claim even if it were to be judged the rightful owner of the copyrights? The next question would have to be, which copyrights? Which code?

Now, as we know, there was ultimately a settlement between the parties, but I notice the judge went on to say this, and remember he is talking about the educational license that had the methods language in it:

"The 00089 agreement permits the Regents to create derivatives of UNIX and, to the extent that the derivatives are free of proprietary information, to distribute them without restriction."

In the Complaint in the Regents of the University of California v. Unix System Laboratories, Inc. case, Index Number 717864-3, filed in the Superior Court of California, Alameda County, which I now have a paper copy of, there are some allegations that add to the confusion.

The Complaint stated that as much as 50% of System V Release 4 back then was code licensed from BSD. Here's paragraph 10 from the complaint:

"10. Substantial portions (perhaps as much as 50%) of the current version of USL's Unix Operating System, 'System V, Release 4,' is comprised of the University's BSD code. USL has paid no royalties for its use of the University's BSD software, although USL currently licenses its Unix Operating System for approximately $200,000. Although USL itself states, the Unix Operating System has become 'one of the most highly regarded computer systems in the world,' this is largely the result of BSD software developed by the University and its contributors which has been incorporated into USL's Unix Operating System. The only form of compensation the University required USL to provide (other than the nominal license fee) was credit and recognition to the University for its valuable software and related documentation. USL failed to provide the University with its due credit and recognition under the applicable license agreements."

Novell, after it purchased it, had the right to distribute 100% of System V, thanks to the expansive BSD License. But Novell didn't own the full copyright on 100 percent of the code, and it can only transfer what it owns. So even if SCO obtained everything Novell had in its power to transfer, which it asserts it never did, there is no way any court could assign all the copyrights for System V to SCO, no matter how you interpret the Agreement as amended. USL itself never owned all of System V, and that's where the chain started.

The University and AT&T entered into a written license agreement in 1986 "for the use of the University's 4.2 BSD and 4.3 BSD computer programs and documentation" and then again in 1989, "for the use of the University's 4.3 BSD-Tahoe computer programs and documentation. . . . made available to AT&T under the same terms and conditions set forth in the March 4, 1986 agreement," according to the Complaint's paragraphs 3 and 4. That latter agreement can be found here. It mentions that others wrote some of BSD in addition to the University:

"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;. . .

"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."

As you see, it's complex. Paragraph 5 says "AT&T licensed, for itself and its subsidiaries, the right to use and sublicense the University's BSD software for, among other purposes, the development of AT&T's (and subsequently USL's) commercial Unix Operating System. The price charged by the University for a license to use its BSD software and documentation was, and is, a nominal fee to cover the cost of production and shipping of the software and related documentation. The University has never licensed its BSD software for profit."

The Complaint goes on to relate that the BSD license back then required that credit be given for their use of the University's code, and that AT&T and its subsidiaries were granted "the right to sublicense 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe to third parties as long as AT&T and its subsidiaries required its sublicensees to comply with the 'Proper Credit and Recognition' obligations contained in Paragraph 8 of the BSD Agreements." Here is paragraph 8:

"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]".

That failed to happen, according to the Complaint:

"The University is informed and believes that USL has sublicensed 4.2 BSD, 4.3 BSD and/or 4.3 BSD-Tahoe to sublicensees, including, but not limited to Silicon Graphics, Inc., the Santa Cruz Organization, Inc. and Intel Corporation, who have failed to give the University proper credit and recognition in the following documentation as required under Paragraph 8 of the BSD Agreements: Silicon Graphics' 'IRIX User's Reference Manual', Santa Cruz Operation's 'Open Desktop Administrator's Guide', and Intel's 'IBCS2'."

This is in paragraph 10 of the complaint. Then there is a list of other documentation that failed to give proper credit in paragraphs 15 and 16. The latter reads: "USL has failed to include the University's copyright notice in System V, Release 4 and related documentation."

On that basis, the University sought an order terminating the BSD agreements or that USL be compelled to provide proper recognition. The case was settled, but it leaves in the air the assertion that a large portion of System V, Release 4, as much as 50% of the code, never belonged to USL to begin with, that AT&T had to take a license to use the BSD code back then, and to sublicense it, which is proof that they didn't own the copyrights on the BSD code, and that there was a failure to abide by the terms of the license.

So, what about the settlement? Here is Marshall Kirk McKusick, who was a participant in that litigation, on the way it worked out from his perspective:

"At the preliminary hearing for the injunction, BSDI contended that they were simply using the sources being freely distributed by the University of California plus six additional files. They were willing to discuss the content of any of the six added files, but did not believe that they should be held responsible for the files being distributed by the University of California. The judge agreed with BSDI's argument and told USL that they would have to restate their complaint based solely on the six files or he would dismiss it. Recognizing that they would have a hard time making a case from just the six files, USL decided to refile the suit against both BSDI and the University of California. As before, USL requested an injunction on the shipping of Networking Release 2 from the University and on the BSDI products. . . .

"In December 1992, Dickinson R. Debevoise, a United States District Judge in New Jersey, heard the arguments for the injunction. Although judges usually rule on injunction requests immediately, he decided to take it under advisement. On a Friday about six weeks later, he issued a forty-page opinion in which he denied the injunction and threw out all but two of the complaints. The remaining two complaints were narrowed to recent copyrights and the possibility of the loss of trade secrets. He also suggested that the matter should be heard in a state court system before being heard in the federal court system.

"The University of California took the hint and rushed into California state court the following Monday morning with a counter-suit against USL. . . .The University's suit claimed that USL had failed in their obligation to provide due credit to the University for the use of BSD code in System V as required by the license that they had signed with the University. . . .Soon after the filing in state court, USL was bought from AT&T by Novell. The CEO of Novell, Ray Noorda, stated publicly that he would rather compete in the marketplace than in court. By the summer of 1993, settlement talks had started. Unfortunately, the two sides had dug in so deep that the talks proceed slowly. With some further prodding by Ray Noorda on the USL side, many of the sticking points were removed and a settlement was finally reached in January 1994. The result was that three files were removed from the 18,000 that made up Networking Release 2, and a number of minor changes were made to other files. In addition, the University agreed to add USL copyrights to about 70 files, although those files continued to be freely redistributed.

"The lawsuit settlement also stipulated that USL would not sue any organization using 4.4BSD-Lite as the base for their system. . . . .Today, the open source software movement is gaining increased attention and respect. Although the Linux system is perhaps the most well-known, about half of the utilities that it comes packaged with are drawn from the BSD distribution. The Linux distributions are also heavily dependent on the complier, debuggers, and other development tools written by the Free Software Foundation. Collectively, the CSRG, the Free Software Foundation, and the Linux kernel developers have created the platform from which the Open Source software movement has been launched. I am proud to have had the opportunity to help pioneer the Open Source software movement. I look forward to the day when it becomes the preferred way to develop and buy software for users and companies everywhere."

But, you may say, no doubt there was further code developed after they licensed the BSD code. True, and that might affect the percentage, but does that not raise an issue regarding derivative code? The University's license allowed for modification of the code, but it doesn't directly speak to the question of ownership of the derivative code, that I could see. Could SCO then be subject to a charge that their code since 1986 is "derivative" of BSD? One thing is for sure. They would have to prove that any "infringement" was an infringement of their code, not BSD's, and not derivatives of BSD's. This could get sticky.

Even if they were to prevail over Novell, therefore, on ownership of the copyrights, it seems to me they still would have a huge mountain to cross, first to demonstrate that any allegedly infringing code is infringing their code, not BSD's, and second, perhaps having to demonstrate that their code isn't derivative itself. Separating out exactly who owned what in this pile of ownership spaghetti is going to be difficult at best.

Clearly, USL had a bad copyright ownership case, and consequently so would any successor in interest. But what about the settlement? How did it affect copyrights? A private settlement affects the parties to the settlement, but what exactly did they agree to? If it only affects the parties, the information in these documents seems to indicate the position that those outside of the settlement would be in. In other words, it would seem that if SCO were to win ownership rights and then sued someone, particularly a non-licensee, if they even could, any defense would be pretty much the same as BSDi's, that SCO lost their copyright when USL distributed without copyright notices. As for the parties, I'll write about how the settlement agreement affected them next. You can consider this article as an introduction to the next one.

The paper materials I received included the Request for Dismissal form. The University, the plaintiff, requested the case be dismissed on February 9, 1994, with prejudice, and the Request for Dismissal is stamped, "Endorsed, Filed, Dismissal Entered February 15, 1994."

Here, then, are USL's Responses to BSDi's Second Interrogatories as text, thanks to Steve Martin. He notes that the original has many OCR issues, and some typos, so check the original before assuming a mistake on our end.

*************************************

Michael D. Loprete (MDL1695)
CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE, P.C.
[address]
[phone]

George L. Graff
James. W. Kennedy
Charles B. Ortner
MILGRIM THOMAJAN & LEE P.C.
[address]
[phone]

Sanford Tannenbaum
Executive Vice President and General Counsel
UNIX System Laboratories, Inc.
[address]
[phone]

Attorneys for Plaintiff
UNIX System Laboratories, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNIX SYSTEM LABORATORIES, INC., Plaintiff, -against- BERKELEY SOFTWARE DESIGN, INC. and certain named individuals in their capacity as THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendants.

Civil Action No. 92-1667 (DRD) PLAINTIFF'S RESPONSE TO DEFENDANT'S SECOND SET OF INTERROGATORIES

Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Plaintiff UNIX System Laboratories, Inc. ("USL") responds to Plaintiff's Second Set of Interrogatories as follows:

General Objections

1. USL objects to each Interrogatory to the extent it seeks information that is beyond the permissible scope of discovery allowable under Rule 26(b) of the Federal Rules of Civil Procedure by seeking information that is not relevant or reasonably calculated to lead to discovery of relevant matter.


2. USL objects to each Interrogatory to the extent that it seeks to impose upon USL obligations beyond those imposed by Rule 33 of the Federal Rules of Civil Procedure, including any obligation to provide information not within the possession, custody or control of USL.


3. USL objects to each Interrogatory to the extent it seeks discovery of information that is protected from discovery by the attorney-client privilege, the work-product immunity or other applicable privileges.


4. USL objects to each Interrogatory to the extent that it seeks discovery of information that is protected from discovery as matter prepared in anticipation of litigation or for trial on the ground that such matter may be discoverable only upon satisfaction of Rule 26(b)(3), which has not been satisfied.


5. USL objects to each Interrogatory to the extent that it seeks the discovery of facts known and opinion held by experts, on the ground that such matter is discoverable only upon satisfaction of Rule 26(b)(4), which has not been satisfied.


6. USL objects to each Interrogatory to the extent that it seeks discovery of USL's trade secrets or other confidential information, unless and until an appropriate Protective Order has been agreed to by the parties and/or endorsed by the Court.

Specific Objections and Responses

Subject to the foregoing General Objections, USL responds to the Interrogatories as follows:

Interrogatory No. 1

Identify all persons or entities who have been licensed at any time by Western Electric, AT&T or USL under the UNIX/32V source code.

Response No. 1

USL maintains original license agreements and related correspondence at a central repository located 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 nonprivileged 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 inaccuracies. USL will make such data bases available at the same time in accordance with Rule 33(c).

Interrogatory No. 2

Identify all persons or entities who have had access or a right of access, under a license or otherwise, to the UNIX/32V source code.

Response No. 2

In addition to the foregoing General Objections, USL objects to this interrogatory as overbroad and unduly burdensome in that it seeks the identity of "all" persons or entities who have had access to the UNIX/32V source code, and to the extent that it seeks information which is not available to USL within the meaning of Rule 33(a).

Subject to the foregoing, the only persons or entities having a right of access to the UNIX/32V source code are:

(1) employees of USL or its, predecessor, AT&T or subsidiaries thereof,

(2) counsel for USL in this action,

(3) Professor John Carson, who has been retained by USL to provide consulting services in relation to this action, and

(4) those entities or persons authorized to have such access by the license agreements, and under the terms of such agreements, which shall be made available as described in the response to Interrogatory No. 1 and the Fourth Request for Documents, Item No. 1.

To the extent that the BSD/386 Source source code, Networking Release 2 source code or other source code developed or distributed without license from USL or its predecessor, AT&T, are based upon, copied from or derived from UNIX/32V source code, including the methods or concepts embodied therein, all persons with access to the BSD/386 Source source code, Networking Release 2 source code or such other source code have had access without the authorization of USL or AT&T to the UNIX/32V source code.

Interrogatory No. 3

Identify all persons or entities who have been licensed at any time by Western Electric, AT&T or USL under the UNIX System III source code.

Reponse No. 3

USL maintains original license agreements and related correspondence at a central repository located 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 nonprivileged 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 inaccuracies. USL will make such data bases available at the same time in accordance with Rule 33(c).

Interrogatory No. 4

Identify all persons or entities who have had access or a right to access, under a license or otherwise, to the UNIX System III source code.

Response No. 4

In addition to the foregoing General Objections, USL objects to this interrogatory as overbroad and unduly burdensome in that it seeks the identity of "all" persons or entities who have had access to the UNIX System III source code, and to the extent that it seeks information which is not available to USL within the meaning of Rule 33(a).

Subject to the foregoing, the only persons or entities who have a right of access to the UNIX System III source code are:

(1) employees of USL or its, predecessor, AT&T and subsidiaries thereof,

(2) counsel for USL in this action,

(3) Professor John Carson, who has been retained by USL to provide consulting services in relation to this action, and

(4) those entities or persons authorized to have such access pursuant to license or other agreements, and under the terms of such agreements, which shall be made available as described in the response to Interrogatory No. 1 and the Fourth Request for Documents, Item No. 1.

To the extent that the BSD/386 Source source code, Networking Release 2 source code or other source code developed or distributed without license from USL or its predecessor is based upon, copied from or derived from UNIX System III source code, including the methods or concepts embodied therein, all persons with access to the BSD/386 Source source code, Networking Release 2 source code or such other source code had access without the authorization of USL or AT&T to the UNIX System III source code.

Interrogatory No. 5

State whether or not the UNIX/32V source code, or any portion thereof, has at any time been distributed by AT&T or USL, pursuant to license or otherwise, without a copyright notice.

Response No. 5

AT&T and USL have distributed the UNIX/32V source code without a copyright notice pursuant to the license agreements referenced in response to Interrogatory No. 1, all of which restrict the licensee's right to make copies of such source code and limit the distribution of derivative works thereof to other UNIX/32V source code licensees.

Interrogatory No. 6

Identify each file in the UNIX/32V source code that at any time has been distributed, whether pursuant to a license or otherwise, without a copyright notice.

Response No. 6

All files contained within the UNIX/32V source code have been distributed by AT&T or USL without a copyright notice pursuant to the license agreements referenced in response to Interrogatory No. 1, all of which restrict the licensee's right to make copies of such source code and limit the distribution of derivative works thereof to other UNIX/32V source code licensees.

Interrogatory No. 7

For each file identified in your response to Interrogatory No. 6, state when each such distribution occurred, and describe in detail the circumstances surrounding such distribution, including, but not limited to, all entities and persons to whom the distribution was made, or who had access to the code distributed, and any restrictions imposed upon such entities or persons.

Response No. 7

See Response No. 6. USL maintains original license agreements and related correspondence at a central repository located 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 nonprivileged 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 inaccuracies. USL will also make such data bases available the same time in accordance with Rule 33(c).

Dated: Newark, New Jersey
August 7, 1992

CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE, P.C.

By: ___[signature]____
Michael D. Loprete (MDL1695)
[address]
[phone]

and

VARET MARCUS & FINK P.C.
(formerly MILGRIM THOMAJAN & LEE P.C.)

By: ___[signature]____
George L. Graff
James W. Kennedy
Charles B. Ortner
[address]
[phone]

Attorneys for Plaintiff
UNIX System Laboratories, Inc.

Of Counsel:
Sanford Tannenbaum
Executive Vice President and General Counsel
UNIX System Laboratories, Inc.
[address]
[phone]