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Progress Report: 1993 Regents v. USL Complaint - Updated
Thursday, February 12 2009 @ 09:36 AM EST

Groklaw is busy working on updating and preserving our collection of documents and information, although the team is keeping the Timeline pages up-to-date, so you can still find all the latest court filings in the litigation we cover there. But it's appropriate from time to time to let you know how the work is going. You'll be happy to know that we're making progress completing our document collection. We'll have both the Comes v. Microsoft and the Gordon v. Microsoft exhibits ready by early next week, I think, if not before. You'll find links to the new collections on our permanent Microsoft Litigation page, once we're done.

And I've been busy going through all our materials, to make sure we haven't overlooked anything of interest. Here's the first find for you, the 1993 Regents of California complaint against USL, with attachments that you'll likely find interesting too. I have obtained it in paper format, and I've scanned it in page by page for you.

The complaint was chiefly regarding proper credit to the University, and as you will see, there's a tie-in to Santa Cruz Operation. The complaint alleged that perhaps as much as 50% of AT&T's System V Release 4 was actually comprised of the University's BSD code. While AT&T had licensed BSD 4.1 in 1983, by 1986 it desired to license 4.2 and 4.3. Exhibit A, the 1986 license agreement between the Regents of the University of California and AT&T, stated that BSD 4.2 and 4.3 included licensed 32V code. And on page 2, the agreement stated that AT&T acknowledged that 4.2 and 4.3 contained proprietary software belonging to the University and that it shall have "no right, title or interest in or to such proprietary software except as expressly set forth in this Agreement".

The Complaint, on page 3, tells us that AT&T wished to license BSD to use in its development of Unix System V, and that it thereby obtained the right to sublicense BSD, which it did to, among others, Santa Cruz Operation, who had failed, according to the Regents, to give the University proper credit. Another sublicensee was Intel, who, the complaint states, failed to give the University proper credit in its "IBCS2". Doesn't this help us to understand how, when SCO showed the code it claimed Linux was infringing at SCOforum 2003, some of it turned out to be BSD 4.3 code?

The Whereas clauses in the license agreement included the information that BSD 4.2 and 4.3 included material contributed by "persons other than agents, officers, and employees of the University" and the terms of which set forth the proper way to give the University and other authors of BSD proper credit.

The complaint states on page 10 that the University had ownership rights to all modifications it made to 32V:

30. UNIX 32V was released by AT&T on or about 1978. AT&T granted the University the right to enhance, modify, and improve 32V and granted the University all ownership rights to such enhancements, modifications, and improvements. The University had the option to release to the public those enhancements, modifications, and improvements to UNIX 32V that did not contain AT&T code or disclose AT&T's trade secrets to non-AT&T licensees.
Interesting, no? Remember in SCO v. IBM SCO's long song and dance about contractual rights to require licensees to keep all modifications secret and treat them exactly like UNIX code? While the USL-Regents litigation was over 32V, the terms regarding modifications matches what IBM claimed, not what SCO alleged, that it always had such a requirement. It also speaks to SCO's failed methods and concepts claims, I'd think.

Here is the Complaint [note update below for PDFs]:

And here are the exhibits:

[Update: Thanks to Nykolai Bilaniuk, we have the above as PDFs:

He tells me he "took the JPEG originals, cleaned them up a bit in Photoshop (e.g. rotations), then cropped them, enhanced contrast and converted to 1-bit per pixel TIFFs. Those [he] PDFed, giving a very compact and easily printable file. The 1-bit TIFFs are also the inputs to the OCR process." End update.]

The 1986 agreement, Exhibit A, on page 3, states this:

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 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.]"
This wording, which the complaint alleged was not used by AT&T, was simplified in the eventual settlement.

The complaint points out that under the Tahoe addendum, Exhibit B, AT&T had the right to redistribute and use BSD provided that all copyright notices, as per the agreement, followed the wording outlined, "Copyright (c) 1982, 1986 Regents of the University of California. All rights reserved." However, the complaint alleged, "USL failed to include the University's copyright notice in its Unix System V, Release 4."

And here, for completeness' sake is the Order to Show Cause filed in Superior Court of California, County of Alameda, on January of 1994 and the eventual Request for Dismissal form, dated February 15, 1994 and filed by the plaintiff, the Regents of the University of California, and subsequently signed and filed by the court on February 9, 1994, the dismissal with prejudice ending that breach of contract litigation.

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