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The Daemon, the GNU and the Penguin - Ch. 13 ~ by Dr. Peter H. Salus
Thursday, June 23 2005 @ 12:29 PM EDT

Here is chapter 13 of our ongoing history of Free and Open Source, The Daemon, the GNU and the Penguin, by Dr. Peter H. Salus.

Here are the earlier chapters:

If you wish to review any of the legal documents he references, our Legal Docs page has a section on BSDI documents, including the long-secret 1994 USL-Regents of California Settlement Agreement.

Judge Dickinson R. Debevoise's 1993 Opinion in USL v. BSDI on the parties' various motions to dismiss/amend and USL's motion for preliminary injunction is here, which found, among other things, the following regarding copyright and trade secrets:

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. . . .

After reviewing the affidavits of Plaintiff's and Defendants, experts, a great deal of uncertainty remains as to what trade secrets Net2 might contain. One fact does seem clear: the header files, filenames, and function names used by Defendants are not trade secrets. Defendants could have printed these off of any of the thousands of unrestricted copies of Plaintiff's binary object code. (Kashtan Aff. at  9-11.) Moreover, the nonfunctional elements of the code, such as comments, cannot be trade secrets because these elements are minimal and confer no competitive advantage on Defendants. The copied elements that contain instructions, such as BREAD and CPIO, might perhaps be trade secrets, but Defendants' experts have argued persuasively that these instructions are either in the public domain or otherwise exempt. As Defendants have repeatedly emphasized, much of 32V seems to be publicly available. . . .

Thus, even if all of the pieces of the 32V code had been thoroughly revealed in publicly available literature, the overall organization of the code might remain a trade secret unless it too had been disclosed.

On the present record, however, it is impossible to determine whether the overall organization of Net2 has been disclosed. The record itself contains little information directly pertinent to this issue. Moreover, the parties' submissions hint that some of 32V's organization may already be publicly available. . . . .

A further consideration is that 32V's overall organization may not even be protectable in the first place. Berkeley's license to use 32V protects 32V derivatives only to the extent that they contain certain proprietary information. If Berkeley excises the proprietary information (as it attempted to do with Net2), Berkeley is free to distribute derivatives without restriction. Berkeley has utilized this freedom in the past to distribute a number of non-proprietary systems and portions of systems, all apparently without objections from AT&T. These distributions, to some degree, must have disclosed the overall organization of 32V. Thus, Berkeley's activities under the licensing agreement, and AT&T's acceptance of those activities, are evidence that Berkeley and AT&T interpreted the agreement to allow the disclosure of at least some of 32V's organization.

In summary, I find that I am unable to ascertain whether any aspect of Net2 or BSD/386, be it an individual line of code or the overall system organization, deserves protection as Plaintiff's trade secret. Since Plaintiff has failed to provide enough evidence to establish a "reasonable probability" that Net2 or BSD/386 contain trade secrets, I find that Plaintiff has failed to demonstrate a likelihood of success on the merits of its claim for misappropriation of trade secrets. No preliminary injunction will issue.

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

The Daemon, the GNU and the Penguin

~ by Peter H. Salus

Chapter 13. USL v The Regents of the University of California

From late 1986 on, Keith Bostic would stand up at each USENIX Conference and announce the progress of his -- the CSRG's -- project: about 35% of the code was AT&T license free; about 55%; about 77%... The progress may have seemed slow at times, but the was always some progress.

And there were always loud cheers and resounding applause.

AT&T's lawyers had started off on the wrong foot in the mid-1970s; the fee structure made AT&T-license-free UNIX a financial necessity. Among others, John Gilmore nudged the CSRG to produce a license-free version. After all, it was clear that AT&T hadn't objected to Minix, which was a UNIX-like system with no AT&T code.

In November 1988, at the BSD Workshop in Berkeley, Keith, Mike Karels and Kirk McKusick announce the completion and availability of BSD Networking Release 1.

NET 1 was a subset of the then-current Berkeley system. It was quite similar to 4.3-Tahoe, including source code and documentation for the networking portions of the kernel, the C library and utility programs. It was available without evidence of any prior license (AT&T or Berkeley), and was (re)distributed via anonymous FTP. The source carried a Berkeley copyright notice and a legend that allowed redistribution with attribution.

(The Berkeley license was, and still is, different from the GPL. Keith and rms had debated the various aspects of the licenses repeatedly, without convergence. I will discuss this later.)

In June 1991, at the USENIX Conference in Nashville, BSD Networking Release 2 was available. NET 2 contained far more than just networking code and, like NET 1, was available with no prior license. The new features included a new virtual memory system (derived from Carnegie-Mellon's Mach system, which had been ported at the University of Utah) and a port to the Intel 386/486.

It was nearly the end of the line for the CSRG. Karels left Berkeley in 1992; Bostic and McKusick, in June 1993. But, NET 2 was a US-Russia collaboration, with contributions by Bill Jolitz, Donn Seeley, Trent Hein, Vadim Antonov, Mike Karels, Igor Belchinsky, Pace Willisson, Jeff Polk, and Tony Sanders. It was turned into a commercial product, known as BSDI (= Berkeley Software Design, Inc.) and was complete by the end of 1991 and released to the public on April 10, 1993 as 1.0, the long delay being the consequence of UNIX Systems Laboratories (USL) filing suit to prevent BSDI from shipping its product.

USL filed for an injunction barring distribution of "BSD/386, pending trial, arguing that BSD/386 infringed USL's copyright in its 32V software and misappropriated USL trade secrets."1 The Court denied USL's request for a preliminary injunction on March 3, 1993, ruling that USL had "failed to show a likelihood of success on either its copyright claim or its trade secret claim."

On March 30, 1993, Judge Dickinson Debevoise of the US District Court of New Jersey reaffirmed his denial of USL's motion for a preliminary injunction against BSDI. The Court found that the 32V source code had been distributed without a copyright notice. The Court rejected USL's argument that the publication of 32V was sufficiently limited to avoid a forfeiture, and thus found that USL had failed to establish that BSD/386 contained any USL trade secrets.

USL subsequently filed a motion for reconsideration, asking the District Court to hold a new hearing on whether USL had published 32V without a copyright notice. USL argued that the Court's prior ruling was based on an incorrect finding as to the number of copies distributed. (USL's motion for reconsideration did not challenge the Court's ruling that USL had failed to establish trade secret misappropriation.)

The Court denied USL's motion for reconsideration. Although the Court amended its prior factual finding as to the number of copies distributed, it found that the number was not critical to its ruling on the issue of publication without notice.

It was just under 20 years since Ken had delivered that first UNIX paper at SOSP and began receiving requests for the software.

It was 15 years since UNIX NEWS became ;login: and the "UNIX Users Group" turned into USENIX.

And, through all of this, Western Electric, AT&T, and now USL had learned nothing about the nature of the user community.

What BSDI (and others, like mt Xinu) were trying to do was ensure the continued development, growth and use of the UNIX operating system. The suit by USL was an attempt to protect something of value. But the value had been discovered too late. Maybe Ritchie and Thompson had handled the system carelessly in the mid-1970s; maybe BTL employees inadvertently gave UNIX to the public without any significant restriction. But the users, like O'Dell and Kolstad, Coulouris and Lions, saw the value.

BSDI had distributed pre-production releases of BSD/386 (Beta version). It now began international distribution. Full source was priced at $1000. (In the January/February 1994 ;login:, Lou Katz wrote: "It works! It works!").

Because of the way the licenses had been granted to the University of California, the Regents of the University had been included in USL's suit. In June 1993, the Regents struck back, filing suit against USL for not complying with agreements made with the CSRG.

In the meantime, Novell acquired USL. A decade later, it is still unclear exactly what USL believed it was selling, or what Novell thought it was buying.

To take but one example, the "PROPRIETARY NOTICE" on the System V errno.h file reads:

This source code is unpublished proprietary information constituting, or derived under license from AT&T's UNIX (r) System V. In addition, portions of such source code were derived from Berkeley 4.3 BSD under license from the Regents of the University of California.

USL had filed suit in New Jersey, the home of AT&T and Bell Labs (and USL), clearly thinking that this would yield an advantage in their suit. When the USL v BSDI and Regents suit was dismissed, the Regents filed suit in California.

On Friday, February 4, 1994, Novell and the University of California agree to drop all relevant suits and countersuits. BSDI immediately announced the availability of a release based on "4.4BSD-Lite."

"We are delighted to settle with USL so that we can devote our full efforts to creating products and serving our customers," Rob Kolstad, president of BSDI, said to me. (I will not go into the corporate history of BSDI here.)

There is no question that The Open Group "owns" the UNIX trademark. There are many questions as to whether any one entity "owns" UNIX. In 1995, Novell executed an "Asset Purchase Agreement" with the Santa Cruz Operation, though exactly what was purchased is unclear a decade later.

While both The SCO Group (a successor to the Santa Cruz Operation) and Novell claim rights to the UNIX source code, many elements of that code carry copyright notices from the University of California and other companies and individuals.

All of this is important because of the various suits filed by The SCO Group and the ownership claims made. It is clear to me that while AT&T owned a good portion of several versions of System V, as a result of the incorporation of code from the CSRG and other sources, they never had full rights to all the source of any of the versions. Exactly what was conveyed to Novell, from Novell to the Santa Cruz Operation, and from the latter to The SCO Group, may be adjudicated in one of the current suits.


1 The story of 32V is in Chapter 6, above.


Dr. Salus is the author of "A Quarter Century of UNIX" and several other books, including "HPL: Little Languages and Tools", "Big Book of Ipv6 Addressing Rfcs", "Handbook of Programming Languages (HPL): Imperative Programming Languages", "Casting the Net: From ARPANET to INTERNET and Beyond", and "The Handbook of Programming Languages (HPL): Functional, Concurrent and Logic Programming Languages". There is an interview with him, audio and video,"codebytes: A History of UNIX and UNIX Licences" which was done in 2001 at a USENIX conference. Dr. Salus has served as Executive Director of the USENIX Association.

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc-nd/2.0/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA.


  


The Daemon, the GNU and the Penguin - Ch. 13 ~ by Dr. Peter H. Salus | 30 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Succession?
Authored by: gormanly on Thursday, June 23 2005 @ 01:10 PM EDT
The SCO Group (a successor to the Santa Cruz Operation)

Surely an alleged successor to Santa Cruz? AFAIK, they have never produced one jot of evidence that the relevant assets were conveyed either from Novell to Santa Cruz, or from Santa Cruz/Tarantella to Caldera/SCO Group.

[ Reply to This | # ]

  • Succession? - Authored by: Anonymous on Thursday, June 23 2005 @ 02:13 PM EDT
  • Succession? - Authored by: markhb on Thursday, June 23 2005 @ 03:04 PM EDT
OT
Authored by: jcarr on Thursday, June 23 2005 @ 01:21 PM EDT
place your off topic things here

[ Reply to This | # ]

anonymous correction
Authored by: Anonymous on Thursday, June 23 2005 @ 02:31 PM EDT
There are some control-T characters in the text. These don't render as anything
meaningful in Firefox 1.0.4 at least, probably not on other browsers either.

(I waited an couple of hours for a logged-in-user corrections thread but ran out
of patience so mods please feel free to delete this especially if a proper
corrections thread erupts.)

[ Reply to This | # ]

Corrections
Authored by: waltish on Thursday, June 23 2005 @ 03:01 PM EDT
Corrections Here

Suppose its to me this time.



---
To speak the truth plainly and without fear,Is powerfull.

[ Reply to This | # ]

The Daemon, the GNU and the Penguin - Ch. 13 ~ by Dr. Peter H. Salus
Authored by: Anonymous on Thursday, June 23 2005 @ 06:57 PM EDT
"The suit by USL was an attempt to protect something of value. But the
value had been discovered too late."

Perhaps, but divestiture had a LOT to do with the change, too. In the 1970's it
was a rare individual, indeed, (at least within the Bell System) who could
envision the breakup of the Bell System and the removing of the 1956 Consent
Decree, which was a lot of the reason that Unix was so widespread -- AT&T
couldn't make it a commercial product, although it was included (one form or
another) in a lot of telephone hardware -- switching systems, and on-network
databases, especially.

So in the 1970s its value to AT&T as a commercial product was minimal --
that changed drastically after One-One-Eighty Four.

Larry N.

[ Reply to This | # ]

Judge Dickinson R. Debevoise's "finding"
Authored by: Anonymous on Saturday, June 25 2005 @ 02:12 AM EDT
Many people cite Judge Dickinson R. Debevoise's preliminary injunction finding
as if it is a legal precedent. But sadly it is not. Findings in interlocutory
(ie preliminary hearings) are not precedents in terms of the substantive legal
point. All they are is a finding that on the minimal evidence before the court
at that time that a remedy such as an injuction would be better deferred until
the whole case is heard. Many times a denial of a preliminary injunction sees is
followed by the denied party actually winning its case. So the finding here is
not a pprecdent of law and would not have any weight in convincing a trial court
about anything concerning the substantive issues. To suggest that it would is
misleading. It seems to me, and I hope someone can correct me, that there has
not been a final decsion in any litigation concerning Unix or Linux. All
decisions have been preliminary/interlocutory with the case being setlled before
any final and binding legal precedent could be made. Please let me know if you
know of any final court decisions. I would be interested to read them.
m.hardie

[ Reply to This | # ]

Unseen Value of UNIX(tm) -> Open Source
Authored by: darkonc on Sunday, June 26 2005 @ 06:53 PM EDT
All of the AT&T licensing of UNIX obfuscates a critical fact about UNIX: in the 70's and early 80's, it was effectively open source.

Not Free Source -- But for everybody who had a University or Commercial Source License (read: Just about anybody that mattered), it was possible to write, exchange and even distribute (albeit only to other license holder -> everybody ) modified and improved copies of Unix. The most extreme example of this was the BSD releases.

If there was a bug, people could go to the code and fix it (or just point it out to someone who could). In the late '70s and early '80s Usenet newsgroups served the function that The Web does today in distributing the changes -- but with a much higher signal-to-noise ratio. Bandwidth and storage issues meant that bigger changes were often distributed on tapes at gatherings like UseNIX.

Although many patches were distributed on publicly readable Usenet newsgroups, sometimes a particularly large patch that threatened to expose too much AT&T could would result in a posting that ended with something like "Send me a photocopy of your license and I'll email you a copy of patch".

Much like was described in "The Cathedral and the Bazaar", AT&T provided the core around which people gathered, and managed to get it widely distributed, but a huge portion of the value was added by non-AT&T staff. UUCP, The TCI/IP Stack, The Berkeley Fast file system (with speed improvements anti-fragmentation designs, long filenames, symbolic links, etc.), vi, emacs, numerous drivers, Virtual Memory (as opposed to full-program swapping) were all added by the (pseudo) Open Source UNIX community.
Oh yeah, and bug fixes all over the place.

The C shell shell's usability functions resulted in the improvements folded into ksh (later on, bash did a muchbetter job) and many other BSDism's were answered in System III, which was their answer to the BSD-2.X releases, and then System V, which answered BSD4.x. Unfortunately for AT&T (but happily for the BSD community), System III and System V tried to 'stealth' in a whack load of BSD code, and got caught at it when they tried to sue the Berkeley Regents over BSDI.

With full and open access to the universities, UNIX went from being a decend (but small) production-capable OS, to one of the giants of the OS world.

What AT&T failed to see (or more accurately, refused to acknowledge -- as evidenced by it's attempted BSD code-hiding) was the value that the world wide community added to UNIX as a result of it's (almost) open-source nature.

I would further submit that what stalled the development of UNIX in the mid-80's to the mid 90s was not so much the fragmentation of UNIX as various vendors fought over it's direction as it was the attempts of AT&T and the commercial community to proprietarize UNIX and take it away from the universities and other outside sources who had so strongly contributed to it's development. This was exacerbated by the effective development freeze that resulted from the BSDI lawsuit.

The extent to which this cost the UNIX universe can be seen by what happened with Linux -- going from a student's plaything in 1991, to almost comparable to BSD in 1998 to Microsoft's One Big Threat in 2005 while the many proprietary forks have languished, died or cheered from the bleachers.

Nowadays, all of the UNIX growth is going into Open Source. Former computer beomouth IBM has shifted it's weight from AIX to Linux, SGI has contributed what it could as well. Ultrix pretty much died with DEC, HPUX is on it's last legs, and the final rights-holders to UNIX -- Novell and SCOG have moved over to Linux and attempted a hostile takeover, respectively.

Oh yeah, and Apple has built OSX on top of BSD -- but they're trying to close-source it, which is probably to their detriment, if what I'm seeing is accurate.

The only other big OS out there, really, is MS Windows, which is built -- not on powerful software, but rather on marketing clout, monopoly power and incredibly predatory business practices.

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

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