decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
The BSDi Settlement and Methods and Concepts - M&C
Thursday, July 13 2006 @ 08:47 AM EDT

I was just reviewing in another context the BSDi settlement agreement from 1994 [PDF], which Groklaw's dburns located and was able to legally obtain for publication under California's Public Records Law back in November of 2004, and I came across a clause that I'd forgotten. So I'm highlighting it here, so we can put it into the Unix Books methods and concepts project, which turns out to be even more significant than I realized.

I wanted to mention the agreement again because I discern from email and comments that not everyone realizes that the agreement is no longer secret. And then too thousands of you were not with Groklaw in 2004.

We were able to obtain it because the agreement was never filed with any court, and therefore to my understanding is binding only on the parties that signed it.

Here, once again, is the letter received from the Regents of the University of California's Office of the General Counsel revealing that the agreement was never filed with any court:

"This is in further response to your request for legal filings, deposition transcripts, court orders and settlements in the California Superior Court case no. 717864-3.

We have determined that the confidential 1994 settlement agreement between UNIX System Laboratories, Inc. and The Regents which was not filed with the court, may be disclosed to you under the Public Records Act."

As I wrote in November of 2004, I believe that means it's simply a peace treaty between the parties, neither of whom even agreed that the other's claims were true, but simply agreed what each would do and would "encourage" others to do going forward.

Here's the paragraph I noticed regarding methods and concepts, paragraph 3C:

USL agrees that it shall take no action against any person who utilizes any methods and concepts in the Restricted Files which as of this date have become available to the general public by acts not attributable to the University, its employees or students. Nothing in this provision shall limit USL's rights against a third party arising out of a breach of any license agreement with USL or AT&T.

Linus, of course, was never in any license agreement with USL or AT&T. While USL reserved its "rights" to sue licensees, no court has endorsed that it even has such rights, not once the methods and concepts were released to the public. For example, IBM's 1985 agreement with AT&T had a confidentiality clause that specifically said, "If information relating to a SOFTWARE PRODUCT subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to LICENSEE or its employees, LICENSEE'S obligations under this section shall not apply to such information after such time." Maybe there were others who didn't have that clause that USL thought it could go after, or maybe the lawyers were just trying to make sure they didn't slam the door on themselves.

My point is, this isn't the court speaking. This is a conversation between these two parties, then, a contract, who are declaring to each other what they've agreed they will or won't do. To my knowledge, no court has yet endorsed or upheld this agreement. IBM's Side Letter covered that issue of using methods, ideas, etc., for IBM in any case, and the two 1985 echo letters said they covered all licensees, but even if none of that had happened, all I see USL saying is that it isn't agreeing with the University not to sue licensees, but it is agreeing not to sue third parties over methods and concepts that have been made known to the public up to that point "by acts not attributable to the University, its employees or students".

Now, what USL may have meant at the time was that if it could pin the tail on the donkey and find a licensee had been guilty of violating the license by revealing things it shouldn't prior to 1994, it wasn't going to hold back. But going forward? I think it would be very difficult to get a court to agree that USL (or SCO) can sue a licensee for using "methods and concepts" that everyone else in the world can freely use and is freely using all over the place, even in standards, just because they are or once were licensees of AT&T or USL. Once a secret is no longer a secret, that would seem to be the end of a confidentiality requirement, I would think, in that no confidentiality exists. Reasonableness is a factor in contract interpretation. What kind of contract would require a licensee to pretend something was a secret that no longer was? Hence the Unix Books project.

There are four categories the parties place various files into in the agreement, categories they -- not you and I or IBM or Linus -- agreed to in order to settle their private dispute, "Restricted Files", "UNIX Derived Files", which includes 23 files USL approved for release in BSD4Lite, "Unrestricted Files", and everything in 4.4 BSD(Lite).

"Restricted Files" are files contained in Net2 which "USL contends contain materials from the UNIX System and/or use or disclose methods and concepts in the UNIX System and whose further distribution is restricted pursuant to this Settlement Agreement." To put a finer point on it, these are files that *the University* agreed they wouldn't further distribute. They also agreed to "take reasonable steps" to "encourage" everyone with access to Net2 to switch to 4.4 BSD(Lite).

In addition, the University agreed that USL could "undertake an effort to advise persons of USL's contention that the Restricted Files may contain material that is proprietary to USL." That isn't the same as saying that the material was proprietary to USL, just that USL was making that claim. The University wasn't even agreeing with them, just acknowledging that USL was asserting such a claim. That's a big difference.

USL makes the same assertion about "UNIX Derived Files", that they contain materials USL contends is derived from or based on UNIX, but which the parties agree the University can freely distribute under the terms of the settlement, meaning with a copyright notice and list of "restrictions on use and distribution" as per clause 2e:

"e. Without waiving any of its proprietary rights therein, USL agrees that UNIX Derived Files listed in Exhibit B, or any material therein, may be freely distributed by the University and may be freely reproduced and redistributed by others without payment of any royalties or fees and without execution of any license agreement with USL and/or the University, provided such files or portions thereof include, in text form, a USL Copyright Notice and the same list of restrictions on use and redistribution of the software presently contained in the Net2 version of the file. Attached as Exhibit F is a copy of said notice which has been agreed upon by the parties."

Notice they "may be freely reproduced and redistributed by others" part? I believe SCO tried to tell us they never gave Linux any such right to use, even with a copyright notice, but doesn't this clause seem to pull the rug out from that assertion? Here are some review links on SCO's position and some material on ABI and errno.h.

In turn, USL, in 3(f), agreed to "affix the University Copyright Notice and the University Acknowledgment" on all the files listed in Exhibit C, the "Unrestricted Files," all the rest of the files in Net2, which the University asserted were derived from BSD Releases "which are contained in the UNIX System or are otherwise distributed by USL". USL agreed not to take any action based on the use or distribution "by any person" of the Unrestricted Files. Finally, everything in 4.4 BSD(Lite) "may be publicly distributed to third parties free of any claim by USL of restrictions on its use or further distribution."

Now that SCO has laid claim to "methods and concepts" as basic as system calls and such, it seemed a good time to remind everyone that the settlement agreement is publicly available.


  


The BSDi Settlement and Methods and Concepts - M&C | 126 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: feldegast on Thursday, July 13 2006 @ 08:50 AM EDT
So they can be found

---
IANAL
The above post is (C)Copyright 2006 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

Off Topic
Authored by: feldegast on Thursday, July 13 2006 @ 08:51 AM EDT
Please make links clickable (post in HTML) and preview before posting.

---
IANAL
The above post is (C)Copyright 2006 and released under the Creative Commons
License Attribution-Noncommercial 2.0
P.J. has permission for commercial use

[ Reply to This | # ]

Just acknowledging your value, PJ Concepts - M&C
Authored by: bbaston on Thursday, July 13 2006 @ 09:10 AM EDT
These recent series of research and review articles are incredible, Pamela!

Your timing is impecible, as Courts and Litigants are now facing realities. It is so comforting to my sense of being violated by tSCOg's legal accusations, as you carefully rehash, with perspective, some of the many awesome findings of Groklaw's endeavors.

In other words, you are invaluable to the community. Thank you.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Restricted Files
Authored by: ewe2 on Thursday, July 13 2006 @ 09:51 AM EDT

FWIW all the restricted files have had the Exhibit F acknowledgement added where they appear in the 4.4BSD-Lite distribution. It seems that whatever objection USL had to several of these files, they could not prevent their distribution. We simply don't know why they disagreed with sys/kern/sys_generic.c for example.

In one case, sys/kern/sys_process.c, the body of the calls has been deleted, which is odd since the ptrace() call in BSD predates the case.

Beyond this, BSD's syscalls were included in the POSIX 1003.1 standard years before (1988) which makes SCO's claims that much more bizarre.

[ Reply to This | # ]

None of that matters
Authored by: overshoot on Thursday, July 13 2006 @ 09:55 AM EDT
The reason is that JFS, NUMA, SMP, etc. weren't in any of the Unices before the Court in that case. They were developed by other parties, and (according to SCOX' contract interpretation) effectively works for hire controlled by AT&T.

Yeah, it's bogus. However, that does seem to be the direction that SCOX is headed.

[ Reply to This | # ]

What about negative know-how?
Authored by: Anonymous on Thursday, July 13 2006 @ 10:32 AM EDT
Judge Wells admitted that you didn't have to show code for negative know-how or
know-how-not-to-do-it. This contract makes no mention of negative know-how.
Surely this is SCO's ticket to untold billions.

OK I'll get back under my bridge now. ;-)

[ Reply to This | # ]

Paragraph 3C
Authored by: rsteinmetz70112 on Thursday, July 13 2006 @ 11:54 AM EDT
I always understood the purpose of paragraph 3C was mainly to prevent USL for
going after BSD users over copyright infringment on the restricted files.

However given the BSD license terms, it pretty much gives everyone in the world
the right to use that material for any purpose at all.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

I think you give SCOX too much credit...
Authored by: Night Flyer on Thursday, July 13 2006 @ 12:25 PM EDT
I believe that, when SCO launched its lawsuit(s), the proponents (Darl et al)
had virtually no clue of the detailed history of each file in the UNIX OS and
the Linux OS. They were, in fact, flying on a the seat of their pants carried
up by the sight of lawsuit dollars in the sky...

Their thoughts might have been "Oh look we can see some lines of code in
Linux that are the same as 'our' UNIX" (ABI's, etc.)... Law$uit$ galore.
It was so obvious to their untrained eyes that they let loose a salvo without
any particular attention to detail.

Not insignificantly, the reported $ infusion from a benefactor allowed SCO to
pursue its lawsuit on someone else's money, adding to the blind enthusiasm.

With time, SCO learned how weak its case was. This happened incrementally, as
each of its points were taken apart and shown to be hollow. It became desperate
and the words of the day changed from 'go get them' to 'there must be something
somewhere' and finally it came to 'obfuscate' (bury them in detail).

Courts and Judges:

Here we are today. It is interesting how much we depend on the court in a
single jurisdiction in a single country, to view and understand this level of
complexity and detail, dispassionately, to see through the obfuscation and come
to a conclusion that will stand through the appeal process.

I am intensely frustrated by the time it is taking, but as I have followed the
process over the past couple of years, I see why it is necessary. (I see it as a
check and balance on the system and as one of the hidden taxes on our freedom.)

I also wonder how much the judge(s) read GROKLAW. As a judge I would want to be
able to consult sources and compare my impressions and opinions of what was
brought to my courtroom to check on its validity. But I would not want to be
seen to be following any outside influence(s).

This has to be one of the most closely followed court cases in the history of
the legal system. Probably more people are following it to see how the legal
system works than the number that would be significantly affected by the outcome
of the SCOX-IBM lawsuit. I am not worried about Linux. It will survive and
thrive whatever happens.

I believe:


---
--------------
Veritas Vincit - Truth Conquers

[ Reply to This | # ]

Witch Hunt
Authored by: Anonymous on Thursday, July 13 2006 @ 01:24 PM EDT
To make it easier for the alleged trolls and astroturfers to earn their pay, I'm
posting some preliminary salvos for you to add to your arsenal. In reply just
select the appropriate numbers, and don't forget to add lots of exclamation
points and ALL CAPS to add an air of authenticity.

1) This agreement is only between USL and UC Regents, doesn't apply to the the
TSCOG v IBM contract

2) uh ...

3) You're all a bunch of long hair smellies

4) Windows Server 2003 is better than Linux

5) PJ isn't a real journalist

6) This is a witch hunt

7) Why is a Wookie on the planet Endar? It doesn't make any sense


Enjoy!
;-)
- Chugiak

[ Reply to This | # ]

question
Authored by: Anonymous on Thursday, July 13 2006 @ 02:15 PM EDT
the agreement was never filed with any court, and therefore to my understanding is binding only on the parties that signed it.

SCOX claims to be successor-in-interest to AT&T. Wouldn't the agreement be binding on them too?

[ Reply to This | # ]

"Restricted Files"
Authored by: Anonymous on Thursday, July 13 2006 @ 02:17 PM EDT
The term "restricted files" has a very specific meaning in this
settlement. It refers only to a small number of insignificant files from the
BSD distribution. These files were listed by name in the settlement.

Because these files were insignificant, UC was willing to concede the issue
regarding them in settlement negotiations.

The programming team removed these restricted files very quickly (within weeks I
think) and issued a clean version of the BSD distribution.

Bert Douglas

[ Reply to This | # ]

The BSDi Settlement doesn't matter
Authored by: Anonymous on Thursday, July 13 2006 @ 04:38 PM EDT
It all doesn't matter, because it is all put in Public Domain, or owned by
Novell, or divested to UnitedLinux. Or something.

[ Reply to This | # ]

  • It does - Authored by: Anonymous on Thursday, July 13 2006 @ 04:55 PM EDT
I would really hate to be on staff at Boies Schiller
Authored by: The Mad Hatter r on Thursday, July 13 2006 @ 10:45 PM EDT


When you look at it, this has got to be one of the strangest court cases ever:

1) You have a client who looks to have a solid case.

2) Your client develops a case of verbal diahrea.

3) A bunch of interested parties who aren't directly related to the case start
taking things apart.

4) You find out that certain parts of the client's case are weak.

5) You find that all of your client's case is weak.

6) You get discovery and can't find ANY significant infringing code.

7) You come to the conclusion that your client doesn't have a case, never had a
case, and didn't have the intelligence to realize it.

8) But you are locked in, and are now grasping for straws to keep the case
going.

9) All the while watching the many interested outside parties shot holes in the
straws.

I supposed it's possible that TSCOG could win something before the case is out -
but it looks like the only way they could do that would be to go to the carnival
and try the ring and bottle game...


---
Wayne

http://urbanterrorist.blogspot.com/

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )