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AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj
Wednesday, June 01 2011 @ 11:30 AM EDT

Before I passed the reins of Groklaw content to Mark Webbink, I had obtained some additional early AT&T/Regents of California documents from the University of California. Thanks to Mark, I finally had time to scan them in and upload them and add them to Groklaw's permanent collection. I'd like to share some highlights with you, at his request.

What stands out to me the most is that AT&T licensed BSD code from the Regents, repeatedly and very early. I will show you the agreement. And another document confirms that AT&T didn't register copyrights on 32V, relying on trade secret protection only, back when you had to take certain steps to own valid copyrights.

Novell, now Attachmate, may think it owns all the pre-1995 UNIX copyrights, thanks to Novell's victory over SCO at trial, but all that was established at trial was that Novell did not *transfer* any pre-1995 copyrights it owned to SCO. The trial didn't parse out and establish what precisely Novell owned, what it had obtained from AT&T in the first place, or what AT&T owned, for that matter.

This is for historians, mainly, but should the SCO v. IBM case ever ramp up again or any new litigation occur, it could come in handy to have these documents.

Here they are:

Some Highlights:

Let's go in more or less chronological order. It is, of course, fascinating to see the 1973 (actually signed in 1974) license agreement [PDF] between Western Electric and Regents. It was a license to use the software to teach students at the University of California, under confidentiality terms, but I see that it included this phrasing:
... however, such obligations shall not extend to any information or technical data relating to the LICENSED SOFTWARE which is now available to the general public or which later becomes available to the general public by acts not attributable to LICENSEE, its employees or students.
IBM had such language in its agreement in 1985 with AT&T if you recall. It's the home-free card, I'd say, given the widespread public knowledge that has by now taken place.

In that 1973 agreement, there was no allowance to license to others at all or do derivatives, but that changed pretty soon, as we can see in the 1978 letter [PDF] from Western Electric to Regents:

In response to your letter of January 18, 1978 to Mr. A. L. Arms, we take no position with regard to your use or distribution of software developed by you which does not contain any of our proprietary information such as, without limitation, the computer programs and documentation, or any portions thereof, related to the UNIX Operating System, including methods and concepts utilized therein.

With regard to the distribution of any software which does contain some of our proprietary information, our primary concern is the prevention of unauthorized disclosure, either intentional or inadvertent, which might jeopardize our valuable proprietary rights in such information. We have no objection to your distribution of such software to other licensees having licenses for the same UNIX Operating System software.... The manner of such distribution is within your discretion. However, the distribution of any such software must include a requirement that the recipient treat Western's included proprietary software in the same manner as if such included proprietary software had been received directly pursuant to the license agreement which such recipient has for the UNIX Operating System. We do not wish to assume the burden of verifying the status of potential recipients of such software prior to your distribution thereof.

So, at first, it was kind of loose, with restrictions on who could have the materials, yes, but with Western Electric saying it didn't wish to have to do the monitoring in advance of distribution. And significantly, you can see that whatever code the licensee wrote was his, just so long as it didn't include any of Western Electric's proprietary materials. Their homegrown code was theirs, not Western Electric's.

I see in the AT&T letter of April 5, 1982 [PDF] to the Regents of the University of California that from 1978 to this letter four years later, AT&T's policy was *not* to closely monitor who received BSD as long as it went to those already licensed for UNIX. This letter states that it was altering the policy going forward with respect to UNIX System III:

It is our policy to permit our software licensees to distribute their own versions of source code for a licensed software package to others licensed by us for the same package. Procedures for such distributions were discussed generally in my April 10, 1978 letter to your Ms. Susan L. Graham. You have now requested that you be permitted to distribute your version of source code for 32V to our licensees for UNIX System III>

In my April 10, 1978 letter I stated that we did not wish to assume the burden of verifying the status of potential recipients of such software distributions. We have changed that policy with respect to distributions to licensees of UNIX System III. Accordingly, we propose that you be permitted to distribute your version of source code for 32V to our licensees for UNIX System III provided that you: ...

So here we see BSD mentioned specifically. There was no objection to its distribution to other licensees, no objection to any licensees distributing "their own versions of source code for a licensed software package" to others with a license to the same package, meaning they are describing derivative works. There follows a list of how the Regents were to keep records going *forward*, by getting a copy of the licensee's software agreement for System III and then calling AT&T to confirm the status and keep records and send them every three months to AT&T. Four years is a long time not to monitor your trade secrets, if you care.

I read all this to say that it was, for a time at least, quite a bit looser than SCO tried to tell the court in the litigation, where it asserted that AT&T had always scrupulously and without fail maintained strict confidentiality and insisted its licensees do the same.

The following year, in 1983, UNIX System V licensees were added [PDF] to the list of folks the Regents could distribute BSD to under the same new terms as System III.

However, in 1984, there began a dispute [PDF]. Regents was not happy with what it viewed as new terms presented in an AT&T letter dated July 30, 1984:

This is in response to the above-referenced letter in which you attempt to impose certain conditions on the University of California's licensing of the Fourth Berkeley Software Distribution. You state as follows:
"This is to inform you that Licensees desiring to obtain the Berkeley 4.1 and/or 4.2 distribution of the UNIX Operating System must have a source license with AT&T for the DEC family of UNIX Software, i.e., UNIX 32V, System III, System V, System V Release 1.0, or System V Release 2.0. If a customer has a license from another System V family (AT&T 3B, M68000, etc.), that customer cannot be licensed by Berkeley until licensed by AT&T for the DEC family of UNIX System V."
The University of California cannot adhere to these terms as they represent a unilaterally imposed amendment to our UNIX/32V license agreement, executed by the University on 2 October 1981 and by AT&T on 27 October 1981. Any such restrictions to our distribution of 4.1 or 4.2 BSD would require a formal agreement signed by authorized representatives of both AT&T and The Regents of The University of California.
This Regents letter [PDF] from Roy Towers to AT&T's David Frasure dated January 30, 1985 adds to the complaint:
Mr. Frasure:

There seems to be some confusion about the above-referenced letter, and I should like to offer some clarification.

Attached please find the following documents:

Correspondence from E.G. Baldwin of Western Electric to Susan L. Graham of the University of California dated 10 April 1978

Correspondence from E.G. Baldwin of AT&T to The Regents of the University of California dated 5 April 1982

Correspondence from D.P. Wilson of Western Electric to The Regents of the University of California dated 15 September 1983

These letters contain specific instructions for the distribution of Fourth Berkeley Software, and represent a contract between The Regents of the University of California and AT&T. The new restrictions you seek to impose in your letter to Pauline Schwartz of 30 July 1984 represent a unilaterally imposed amendment to this contract that is unacceptable to the University of California.
We don't have the referenced July 30, 1984 AT&T letter, but we do have this AT&T letter [PDF] of February 12, 1985, where AT&T quotes from the 1984 AT&T letter and responds to the Regents' concerns: "We do not agree with your characterization of such letter as a unilateral amendment," AT&T's D.W. Frasure writes to Roy Towers, at the University of California, referring to a 1981 agreement. AT&T's position in 1985 was that permissions granted in a Sept. 15, 1983 letter (and I would assume in the 1981 agreement) "does not extend to our licensees of versions of UNIX System V not intended for use on DEC computers." It states that the "original versions of UNIX System V were for Digital Equipment Corporation (DEC) machines" and that it never gave Regents permission to distribute BSD to AT&Ts licensees "for the versions of UNIX System V intended for AT&T's 3B computers and computers based on Motorola's M6800 product."

That is how Mr. Frasure read the above April 5, 1982 and Sept. 15, 1983 letter agreements. I see nothing in them matching his interpretation, personally, and the 1978 Western Electric letter seems to contradict his interpretation, and please notice this language on page 1:

The 1979 and 1981 agreements grant to the University of California certain limited rights to use LICENSED SOFTWARE. There are specific provisions in the agreements (i) prohibiting the use of LICENSED SOFTWARE by or for any third person (last sentence of Section 2.01 in both agreements), (ii) requiring that LICENSED SOFTWARE be held in confidence (Sections 5.06 in the 1981 agreement and Section 4.06 in the 1979 agreement) and requiring that LICENSED SOFTWARE not be sold, leased, or otherwise transferred or disposed of (Section 5.10 in the 1981 agreement and Section 4.10 in the 1979 agreement). Notwithstanding these provisions, it has been our policy for a number of years to permit our licensees for a particular software product to furnish their derivative versions of such software products to our other licensees for the same software product. Such policy was not reflected in the language of the software agreements we used in 1979 and 1981, but our software agreements now cover this point. (See Section 7.06(b) in the attached specimen copy of our current Educational Software Agreement. Of course, you were operating under that policy when you distributed your version of 32V to our other licensees for 32V.
Emphasis is mine. Otis Wilson told the truth, then, in his depositions, and as testified to by Dr. Peter Salus in his Declaration [PDF] in SCO v. IBM, that there were policies that changed over time, and sometimes the policies were not reflected in the license agreements. And the licensees were free to do their own versions, without any claims of ownership of their code by AT&T.

Anyway, the point is that in these newly available documents, what we are seeing is AT&T trying to alter a policy midstream, but with Regents not agreeing to the change. I can see why Regents would view the DEC limitation as a unilateral amendment, frankly, absent any other written agreements or letters. But we don't have the full record.

In any case, in a letter dated 1986 it looks like AT&T prevailed, because the letter announces BSD 4.3, and it says it was available to "VAX users with UNIX/32V, System III, or System V source licenses with AT&T", VAX being a DEC trademark.

Then, in this 1989 letter [PDF], the announcement was made by the University that no AT&T license was required at all for the first release of BSD networking software:

We are happy to send you information about our first release of the BSD networking software. This software is copyright Berkeley, and may be freely redistributed. It is available to anyone and requires no previous license, either from AT&T or the Regents of the University of California.
You had to pay $400 and sign the attached license agreement. After that, you could "reproduce or distribute any copies of the LICENSED MATERIAL or derivative works, in source or binary form, as long as the original copyright notice is retained by LICENSEE in redistributed source code, and appropriate credit is given to the Electrical Engineering and Computer Science Department of the University of California at Berkeley." They provided wording for credit. But the licensee was free to "enhance, modify, or correct" the code, merge it into other material and then distribute the modified version. That would include AT&T, of course. They could do all those things as well. And in due time, so could Linux.

One thing I've learned from researching UNIX is that bookkeeping wasn't complete back then, and it's worse now, making trying to trace it all out quite difficult, but at least we can fill in some gaps now. SCO's attorney, Kevin McBride -- Darl's brother -- said in open court in 2003 that there are no trade secrets any more in UNIX ("There is no trade secret in Unix system files. That is on the record. No problem with that."), so you could argue it's all moot. (Again, see Groklaw's Unix Books project for multitudinous examples of the "secrets" being scattered to the winds long ago, even if the attorney had not said what he said.] But given SCO's tactics, and all the asset sales, it never hurts to have it all carefully documented to the degree we can.

AT&T Licensed *From* the Regents:

Significantly, we have now a March 1986 licensing agreement, signed by AT&T and the Regents of the University of California. But this one isn't Regents licensing from AT&T. It's the other way around. It's AT&T licensing BSD *from* Regents. And by its wording we learn there were earlier versions of the same type. Here it is [PDF]. Please note on page 1 that AT&T acknowledges three significant things:

1) that Regents owned "enhancements and additions to 32V, which together with parts of 32V comprise computer programs and documentation entitled Fourth Berkeley Distribution";

2) AT&T wanted to take a license from Regents to use BSD 4.2 and 4.3, and that it had earlier, in 1983, licensed 4.1 BSD; and

3) that 4.2 BSD and 4.3 BSD "include some material contributed by persons other than agents, officers, and employees of the University" who are termed in the agreement "Other Contributors" which it says "are identified within 4.2 BSD and 4.3 BSD.

That would be you guys, I presume, some of you, all the students and others who contributed patches and improvements back then.

AT&T under this license got the right to use the software and to sublicense it with or without modification whether or not in conjunction with any other software. That means to me that AT&T could incorporate BSD code into its own UNIX software. And we know it did.

On page 2, notice that paragraph 4 says that AT&T agreed that 4.2 and 4.3 BSD contained proprietary software belonging to the University, and AT&T had no "right, title or interest" in that software, other than the rights set forth in the agreement. If you look at paragraph 5, 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".

Paragraph 7 says that AT&T got the right to sublicense object code "that an end user accepts by opening the package containing the object code." It could be modified and then sublicensed by the AT&T sublicensee.

So, so far, we see enough to realize that both AT&T's UNIX and the Regents' BSD had code in it owned by the other. So in any litigation, one would want to know precisely who owned the file that might be introduced into the case, along with proof of copyright ownership.

On the next page, you see in paragraph 8, that AT&T was to give "appropriate credit" to the University of California "and to the Other Contributors for their roles in the development and will require sublicensees to give such credit," and they could put it in documentation similar to 4.2 and 4.3 BSD notices. It provides the language:

This software and documentation is based in part on the Fourth Berkeley Software Distribution under license from The Regents of the University of California. We acknowledge the 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.]"
Did AT&T abide by this obligation? We found out in the BSDi litigation that they did not always do so. I wonder if that means the license no longer covers them? You can see that the University could terminate the license on written notice to AT&T if AT&T breached and did not cure. If terminated, AT&T was to destroy all BSD copies it had.

But one thing is obvious -- if anyone, SCO or anyone, tried to sue over UNIX code, they ought to be required to demonstrate in court that they actually owned the code, that it did *not* come from BSD. Given their failure to abide by the credit requirement, that will be at a minimum really hard and at worst impossible. Or at best, depending on where you are standing.

Let's look at the Schedules, beginning on page 6. One page seems to be missing, so if anyone ever finds it, please provide it to us. But what we have is fascinating, because look at what it was that AT&T licensed *from* -- not *to* -- Regents, on page 9 of the PDF, a list of files licensed, including an old friend:

I notice a couple of things:

1) The full schedule isn't there. There is mention of "pages 2-5" but we only have 2 & 3, and it's clear from the alphabetic listing that page 3 isn't the last page.

2) The list of files is a *complete* list of all the files on an old BSD system. In other words, the tape was a dump of a live system. For example, one of the files is /etc/hosts, which is a configuration file and something you wouldn't license to anyone.

Now, as you know, the first errno.h came from 32/V and had about 30 or so errors listed in it. So the fact that this is listed on this as being licensed doesn't mean AT&T didn't own the original. But Berkeley then added another 30-40 errors for the networking and other things to the file. In listing the files to be licensed, AT&T evidently simply wanted to list all the files from which they wished to take substantial Berkeley code. The listing of a file there did not imply that it was entirely Berkeley code. Just that it had substantial Berkeley additions.

But stop and think. SCO sued IBM over errno.h, as if it owned it all. It turned out it didn't own it at all anyway, but even if it had, at most only about half of the errors were AT&T code, and the rest were not. That's consistent with the 1993 complaint in the BSDi litigation, where the assertion was that about half of the code at issue was actually from BSD. BSD was copyrighted. But what about the AT&T-written code?

AT&T wasn't good at keeping the BSD copyright notices on the code, despite being required by the license to do so, so by the time SCO showed up, they might have seen only an AT&T copyright notice and just assumed they owned it, had they owned it. For the sake of historians, though, you can find here the 1983 and 1985 versions of errno.h released with 4.2 BSD. And here's a more modern list.

I contacted Warren Toomey about all this, to make sure of the details, and he told me the following:

BSD certainly implemented networking, and AT&T took a lot of the code from around the 4.2BSD epoch and used it in SysVR4. This code would have used many new error numbers which are network-specific. In this file, you will see the 4.2BSD errno.h; most of the error numbers from 35 up are network-related.
Here's where you can go to compare files between various versions of Unix and non-Unix systems, by the way.

Of course there are many other significant problems for anyone trying to sue over errno.h, which Groklaw has chronicled over the years, including Caldera releasing Ancient Unix under a BSD-like license. And then there's POSIX compliance. And a significant piece is that AT&T didn't register any code for copyrights in the early days. That came out in the BSDi litigation, if you recall. In Judge Dickinson Debevoise's ruling on summary judgment, he wrote this:

AT&T's Bell Laboratories developed UNIX in the 1970s, and registered the name UNIX as Trademark No. 1,392,203 on May 6, 1986. (1st Am. Compl. Ex. B.) In addition, AT&T has received copyright certificates of registration on UNIX software and documentation for the Fifth through Seventh Editions and for version 32V. (Id., Exs. C-F.)....

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. Section 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....

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 Section 405(a)(1)-(3).

Plaintiff cannot avail itself of any of these provisions.

We see confirmation in AT&T's 1988 announcement [PDF] about copyrighting CPIO Source Code:
AT&T has decided to publish, subject to suitable copyright restrictions, a portion of AT&T's source code known as CPIO software and described in Appendix A attached to this letter agreement....

Berkeley understands that the decision by AT&T to so publish the CPIO software in no way affects the trade secret status of any other AT&T source code licensed by AT&T to Berkeley or Berkeley's corresponding obligations of confidentiality with respect to such other source code.

Here we see AT&T acknowledging that it relied on trade secret protection prior to this moment, and that all it was copyrighting was the CPIO software. Now, consider that the license from Regents to AT&T was in 1986, and adding in the information that AT&T's errno.h code consists only of the first 34 or so files, that 32V was first published in 1978, and then noting that AT&T didn't register a copyright for 32V until 1992, and this judge earlier wrote that it wasn't valid anyhow and that AT&T had no copyright due to lack of proper notices on 32V, how in the world could any entity justify a claim of copyright infringement on the early errno.h file? UNIX was published without notice, AT&T relying on trade secret protection instead, at a time when that mattered. At a minimum, any defendant would seem to have a right to ask the plaintiff to demonstrate an actual ownership trail and prove the validity of any asserted copyright. And from the 1986 license alone, any plaintiff would have to prove that whatever they are suing over *didn't* come from BSD 4.3, or 4.2 or 4.1, all of which AT&T licensed from Regents, going back to 1983, if not before.

So Novell, now Attachmate, may think it owns all the UNIX copyrights after Novell's victory over SCO at trial, but in reality it owns, at most, a subset and not the basic, early UNIX code or methods and concepts (in a copyright context). AT&T made a decision to rely on trade secrets instead, and later owners of Unix have to live with its choice.

A couple of other side points: If you review SCO's answers to IBM interrogatories [PDF] early in the case, where SCO explained its theory of how IBM allegedly misused "its" code, on pages 21 and 22, you see errno.h in the section about JFS. SCO's claim was this:

In addition, IBM's drop of JFS into Linux reference files contains references to UNIX-based header files, not otherwise found in Linux prior to IBM's identified transfers, further indicating that the source of this technology was AIX.
A reference to sys/errno.h doesn't prove it came from AIX. Any software developed on a POSIX compliant system (or one with a partially compliant POSIX implementation) might reference that file. For example, here is someone developing on OS/2 (the source of Linux JFS) having to reference that very file.

And while SCO repeatedly claimed that similarities between source files "proved" copying, Groklaw's Dr Stupid explains here how code could be similar without it implying copying, that some similarities are inevitable. I had to put it in a separate page, to keep the code he uses to demonstrate his points intact.

You may notice more highlights in this collection. If so, be sure to leave a comment. I've put them all on Groklaw's permanent Contracts page, under both BSDi and AT&T headers, so you and historians can always find them easily in any research projects you may undertake.


AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj | 185 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
London Bridge syndrome again?
Authored by: Anonymous on Wednesday, June 01 2011 @ 11:49 AM EDT
Some folk did suggest that what was bought might not be what the purchaser
thought was being purchased.

[ Reply to This | # ]

Corrections here
Authored by: The Cornishman on Wednesday, June 01 2011 @ 11:51 AM EDT
Please put the correction in the title, as e.g. Corection -> Correction

(c) assigned to PJ

[ Reply to This | # ]

Newspicks comments
Authored by: The Cornishman on Wednesday, June 01 2011 @ 11:53 AM EDT
Please put links to the newspick on which you are commenting into your post, so
we can find our way back to the item.

(c) assigned to PJ

[ Reply to This | # ]

Off-topic thread
Authored by: The Cornishman on Wednesday, June 01 2011 @ 11:54 AM EDT
Please post off-topic here. Defaulters will be gently chided to within an inch
(2.54 cm) of their respective lives.

(c) assigned to PJ

[ Reply to This | # ]

COMES transcripts thread
Authored by: The Cornishman on Wednesday, June 01 2011 @ 11:56 AM EDT
Please post transcribed COMES documents here. Preferred format is HTML markup
posted in plain text. And thank you.

(c) assigned to PJ

[ Reply to This | # ]

The clarification letter
Authored by: Ian Al on Wednesday, June 01 2011 @ 12:12 PM EDT
There was the clarification publication to Sys V licensees that appeared in the
IBM case confirming that licensees owned the rights to the code they wrote
unless it included Sys V proprietary materials.

This new information confirms that SCO are completely wrong to suggest that IBM
do not own their own code used with SysV. Since SCO only have the contrary
assertion left in their case, IBM don't need Novell's right to waive or even
Novell's continued ownership of (some) SysV copyrights.

The case is over! No wait, there is still SCO's infringement of IBM's copyright
code and the Lanham Act violations.

I do hope Ralph takes full ownership of the litigation!

Ian Al
OK, Just one more article and then I'll seek help.

[ Reply to This | # ]

Unix History Context 1973-1999
Authored by: rsteinmetz70112 on Wednesday, June 01 2011 @ 12:48 PM EDT
Going back into this time frame it is I think important to keep the context in

In the early days of software it was hotly debated whether software could even
be copyrighted, being a mere list of instruction and similar lists (recipes for
example) had been held to be uncopyrightable. Being a foodie I never understood
that nor the one about typefaces.

It was also widely believed that the students did not own the work they produced
for classes and some of the student contributions were actually part of the
students job.

Finally in the early days of Unix ATT was barred from going into the computer
business so they had little economic incentive to limit the distribution of

I need to read the correspondence more carefully and compare it to the Unix
timeline to verify this but it appears from this correspondence that while ATT
did shift its rules over time as ATT entered the computer business, ATT
generally made these modifications as new versions of Unix were released not
during the course of an agreement. In that case the licensees got the new
version along with some new rules reflecting where ATT interest was at the time.

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 | # ]

Nice article & Nice to hear from you again :-)
Authored by: SilverWave on Wednesday, June 01 2011 @ 01:44 PM EDT
Interesting stuff.

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj
Authored by: xtifr on Wednesday, June 01 2011 @ 05:31 PM EDT

PJ wrote:

Novell, now Attachmate, may think it owns all the pre-1995 UNIX copyrights.
It seemed to me that there was evidence Novell knew they didn't, from the careful way they phrased some things (no examples leap to mind, but I could probably track some down if forced). Is there any reason to think things have changed post–Attachmate sale?

About the only thing Attachmate seems to have done so far that has any sort of potential consequences is to split Suse off into its own separate division, a move that makes a whole lot of sense to me, since Suse seems to have been the primary money-maker at Novell recently. Of course, it could be a plot to milk it and starve it to death, but if they actually have any plans to make money off their purchase, Suse should be the first place they look, and Novell should be mainly interesting for their well-known brand.

I realize that Attachmate has suddenly become a company that needs to be watched carefully, and that a number of people are suspicious because the third party in the original three-way deal was so blatantly a Microsoft front, but aside from not wanting to necessarily buy every scrap of Novell (leaving room for the evil third party to appear), is there any evidence yet that they have any sort of ties to the dark side? Honest question—I freely admit I haven't been watching them as carefully as perhaps I should.

Do not meddle in the affairs of Wizards, for it makes them soggy and hard to light.

[ Reply to This | # ]

I love this article!
Authored by: Anonymous on Wednesday, June 01 2011 @ 07:55 PM EDT
I love this article.

It is as if the horse has left the barn, ran 200 miles away, fallen over a 8,000
foot cliff, been eaten by bears, picked over by vulture, had its bones decay
into dust, and had its bone dust scattered throughout the valley.

Meanwhile, the barn has fallen into disrepair, collapsed, and rotted completely

Just in case some uninformed party imagines that they might want to put up some
paper barn doors against a stick and tape them shut, this article further
informs them that the far away valley, where the decayed horse dust is blowing
to and fro, has been completely blown away by a dozen nuclear warheads.

[ Reply to This | # ]

Standard of proof?
Authored by: Anonymous on Wednesday, June 01 2011 @ 10:11 PM EDT
From the article:
"But one thing is obvious -- if anyone, SCO or anyone, tried to sue over
UNIX code, they ought to be required to demonstrate in court that they actually
owned the code, that it did *not* come from BSD. Given their failure to abide by
the credit requirement, that will be at a minimum really hard and at worst
impossible. Or at best, depending on where you are standing."

But in civil cases, the standard of proof is usually "balance of
probabilities", not "beyond reasonable doubt." Would it be
different in this case? Does it matter that it was SCO's predecessors in
interest who failed to maintain the audit trail that could settle the issue?
(I.e. does this create some sort of presumption against them?)

IAN anything even vaguely resembling AL.

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What the purchaser think they get
Authored by: paivakil on Thursday, June 02 2011 @ 01:38 AM EDT
I have strong suspicion that the persons who bought up Novell think what they
get is the right to sue the public at large in perpetuity.

Now I know that I am not alone in thinking so.

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Could/should OpenOffice follow a UNIX-like model of proliferation?
Authored by: Bystander on Thursday, June 02 2011 @ 04:41 AM EDT

Given all the responses to the announcement that Oracle is handing over OpenOffice to the Apache Foundation, it's interesting to consider a possible OO future in light of UNIX's history. As PJ points out in her article, the early history of UNIX ownership is a tangled one, which continued in later years to an even greater extent. As the UNIX history diagram by Eric Levenez shows, practically every major UNIX branch was the product of contributions from many different sources at many different times. One factor that made all this cross-fertilization possible was that particular implementation details didn't matter as much as maintaining conformance with established UNIX interface standards, providing guarantees of backwards and forwards compatibility for applications written to those standards.

One way to look at the transfer of OpenOffice to the Apache Foundation is that the project may become less centered around producing simply an office productivity application, and more focused on spreading adoption and innovation around the ODF standard. Apache is particularly known for producing tools that help others build web and network-based applications around established standard protocols. I tend to agree with some of the sentiments expressed by IBM employee Bob Sutor on his blog when discussing the transfer to Apache.

Over time, the code will be refactored and more uses will be found for it. Within a couple of years I think you’ll find greater use of ODF in other desktop applications, mobile apps, and even in the cloud. This won’t all come from the existing code base but rather also from new contributions from others working in the ASF.

A number of people, mainly from the LibreOffice camp, who are critical of the announced transfer like to point out that the new OpenOffice effort will be without the services of many long-time developers, and will have to find new people to fill their shoes. While this can be cast as a negative, it might also be seen as having some positive implications as well. Rather than simply taking the existing pool of OpenOfffice developers and splitting them into two smaller and distinct groups, there is the possibility to actually increase the total number of developers by growing a new base in the Apache effort. There might also be less resistance to undertaking major refactoring and redesign efforts if people are not already heavily invested in keeping things familiar and comfortable.

There have been other successful examples of projects forking and both branches continuing as viable projects. The fork of KHTML by Apple to ultimately produce WebKit and Safari is a good example. Even if the two code bases wind up diverging significantly because they are working towards different goals, as long as they each fully support the ODF standard the FOSS community likely comes out ahead. More applications supporting ODF as the fundamental document exchange standard means there will be fewer reasons for people to stay with a vendor that locks them into a sole-source solution.

To me, it sounds like a good idea to have LibreOffice continue as the primary developer of a world-class office productivity suite that can compete with the proprietary offerings from Microsoft. They seem to have an opportunity to grab some momentum from the split with OpenOffice and get some needed improvements out faster than would have been possible under the old management. They might even benefit from efforts in Apache OpenOffice at some time in the future, a prospect that is enhanced by an OpenOffice Apache 2.0 license that should be fully compatible with LibreOffice efforts, allowing easy integration should that be desired.

There are some complaints being expressed along the lines that splitting the original OO project into two distinct efforts is a bad use of resources, and that greater progress could be made if there were one unified effort. I'm not so sure. Looking at the example of UNIX and how multiple independent development efforts wound up heavily cross-contributing to each other over the years to produce better versions than the original gives me some hope that OpenOffice and LbreOffice might be the start of something similar. It's still too early to tell how this is all going to play out.


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    But Darl McBride has a different story ...
    Authored by: dmarker on Thursday, June 02 2011 @ 07:55 AM EDT

    It is well known that he wasn't there for all that 'old Unix stuff' and for when
    Unix with the 'Berkley Enhancements' was the only serious variant used by the
    business community. In fact that phrase 'Berkley Enhancements' has absolutely
    no meaning nor value to him (as he was too young to spell it let alone
    understand it).

    So, Darl was still in diapers back then & was thus well able to later tell
    the world that his view of Unix was the real view because he was now CEO of the
    company that salvaged its decaying commercial carcass from the Santa Cruz Op who
    thought all their Christmases had come at once when some apparent sucker
    appeared at their doorstep and off-loaded the millstone from around their neck.
    They had gone into a steep income decline in 2000and this was openly &
    publicly attributed to the growth of Linux at the time, by Santa Cruz's CEO.

    But Darl proved that even if he couldn't make money from Unix he could sure make
    waves. Sad part is there was no market for waves (nor for his Unix). But he did
    get a great nudge & a 7 year salary funded by external forces hell bent on
    stalling Linux and IBM.

    Meanwhile Linux just kept on keeping on. Microsoft's sleight-of-hand fund
    raising via Baystar Capital for tSCOg's litigation did not save them. They were
    so blindsided by Linux that Apple walked right on past them & Microsoft has
    a snowball's chance in hell of reversing the Microsoft vs Apple situation. And
    Linux just keeps keeping on.

    But Darl made his money & thus far has avoided the backwash from the waves
    he made (which he made at the behest of his leader and mentor Ralph Yarro).

    Back in the early 1980s Berkley Unix was 'always' the better choice in the
    commercial world. And today guess what largely powers Apple. :) Not AT&T's
    Unix not USL's Unix & not tSCOg's old Unix. All tSCOg did was sully the
    name & memory of a great product that paved the way for much of what
    computing is today. :)


    (stepping off soapbox)

    (PPS But we now have son-of-sam taking over the mantle of the 'glorious Unix'
    truly created by SCO over 30 years ago and that is the core and the reason for
    all Unix versions in the world who all owe everything they ever added back to

    (gotta go to bed - its late :) )

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    What can I say?
    Authored by: Aladdin Sane on Thursday, June 02 2011 @ 04:16 PM EDT
    PJ's style is just plain more *vibrant* than Mark's.

    Well, it's either Captain Kirk or Doctor Strangelove. —me, ca. 1984-1985

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    AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj
    Authored by: Anonymous on Thursday, June 02 2011 @ 06:21 PM EDT
    Opinion Piece.

    Just want to add a comment on Unix & the influence of Berkley & in
    particular Bill Joy.

    For Unix we owe great thanks in particular to Ken Thompson & Dennis Ritchie
    & to those other people from Bell Labs who worked with Ken & Dennis to
    develop the early Unix system (Kernigan Johnson etc: ).

    But IMHO equal thanks have to go to Bill Joy & his crew at Berkley who added
    features to Unix (the Berkley Enhancements), that ultimately made Unix viable
    for commercial use. I would argue that Unix would never have taken off
    commercially had not Bill developed libcurses which made it possible to attach
    any brand of glass tty terminal (such as the DEC vt52 & vt100 etc: ) to unix
    computers. Libcurses & TERMCAP allowed cursor positioning on terminals that
    accepted positioning sequences for screen display. This feature was less
    important in academia than it was to commercial software used in business.

    At the same time, powerful micro chip based computers were starting to come to
    market. There were so many in the early 1980s & they all wanted an OS that
    was quick to port and supported existing commercial grade compilers in which the
    bulk of commercial software had already been written.

    In the early days we had Ryan McFarland porting their COBOL compiler to Unix -
    self worked with RMCobol on Ver 7 Unix from Zilog running on a Z8000 processor -
    the OS was called ZEUS (Zilog Enhanced Unix System which was Unix Ver 7 +
    (critically) the Berkley Enhancements).

    Putting Cobol onto Unix that supported multiple cheap glass tty cast offs from
    other systems meant that a lot of commercial Cobol software could be compiled on
    Unix machines with very little porting effort *and* at a very low cost for both
    the porting and the cost of hardware. Self also worked extensively with MFCobol
    (Micro Focus). They ported to Unix too, back in the early 1980s. They demoed it
    at a computer trade show in Houston Texas in about 1982/3 where self saw it for
    the first time.

    Libcurses also made it possible for a lot of other compilers to be quickly
    ported to Unix and that expanded the opportunity further. Microsoft ported
    Cobol-80, Fortran-80, and Basic to their Unix Ver 7 variant (Xenix). Xenix was
    arguably the best commercial Unix for many years & was eventually taken up
    by the Santa Cruz Op in a deal with Microsoft who took a slice of the company as
    payment for handing over Xenix. Xenix was originally (like Zilog's ZEUS), a Unix
    Ver 7 + the critical Berkley Enhancements distribution. In those early days a
    Unix without the Berkley Enhancements had no chance of success at all in the
    commercial market. Commercial Unix needed terminals with cursor control and
    programs that could work with different brands of terminals that had
    incompatible cursor positioning codes.

    Whilst porting Basic to Unix probably did more long term harm than good (it
    allowed script kiddies to write horrible code with great ease), *but* it did
    accelerate the porting of good (and bad) commercial Basic programs to Unix.

    So of all the many & great Berkley Enhancements (incl the great (in its day)
    C-shell. Am convinced that Unix would never have been taken up outside academia
    had it not been for Bill Joy & his associates at Berkley.

    At the time Bill got very little credit nor acknowledgement for what he did. In
    fact self has had conversions with Ken Thompson where I raised the issue of the
    importance of Bill's work but sadly Ken was critical of those add-ons as not
    being elegant or in the Unix spirit !. So it seemed to me Bill Joy became an
    unsung hero of the rise of Unix & the fact that BSD Unix emerged from his
    original inspiration & effort speaks volumes. I was very pleased to see
    Bill Joy become part of the SUN Microsystems founding team and I trust he did
    very well out of it. He deserved a lot more credit than he ever got.


    And Darl McBride would have us believe his tSCOg was the genius behind all
    modern Unix implementations - sheesh !!!

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    AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj
    Authored by: Anonymous on Friday, June 03 2011 @ 07:27 AM EDT
    Many of the old hands reading Groklaw knows this history by heart, but for those that don't this essay by Kirk McKusick in open sources is a good overview: Twenty Years of Berkeley Unix.

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    Whatever happend to this site?
    Authored by: Anonymous on Friday, June 03 2011 @ 10:08 AM EDT
    It would be handy now. Linky

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    AT&T/Regents Collection 1973-1999 Raises the Question: What Unix Copyrights Does Novell Own? ~ by pj
    Authored by: nobody on Monday, June 06 2011 @ 12:41 PM EDT
    When it comes to Unix copyrights, the term "morass" or
    "quagmire" (not the kind that's "OH YEAH!") come to mind.

    [ Reply to This | # ]

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