Subject: Re: SCO's actions
To: Greg 'groggy' Lehey <email@example.com>
From: Gilbert Fernandes <firstname.lastname@example.org>
Date: 05/23/2003 17:13:22
On Fri, May 23, 2003 at 06:12:05PM +0930, Greg 'groggy' Lehey wrote:
> > Doesn't mean SCO won't be fool enough to try it again.
> Yes, that had occurred to me too.
Part of the settlement is that BSD may not be sued again
because of accusations of USL source code in BSD source
(USL = Unix System Laboratories)
The lawsuit itself :
In addition to the groups organized to freely redistribute systems
built around the Networking Release 2 tape, a company, Berkeley Software
Design, Incorporated (BSDI), was formed to develop and distribute a
commercially supported version of the code. Like the other groups, they
started by adding the six missing files that Bill Jolitz had written
for his 386/BSD release. BSDI began selling their system including both
source and binaries in January 1992 for $995. They began running
advertisements touting their 99% discount over the price charged for
System V source plus binary systems. Interested readers were told to
Shortly after BSDI began their sales campaign, they received a letter
from Unix System Laboratories (USL) (a mostly-owned subsidiary of AT&T
spun off to develop and sell Unix). The letter demanded that they stop
promoting their product as Unix and in particular that they stop using
the deceptive phone number. Although the phone number was promptly
dropped and the advertisements changed to explain that the product was
not Unix, USL was still unhappy and filed suit to enjoin BSDI from
selling their product. The suit alleged that the BSDI product contained
proprietary USL code and trade secrets. USL sought to get an injunction
to halt BSDI's sales until the lawsuit was resolved, claiming that they
would suffer irreparable harm from the loss of their trade secrets if
the BSDI distributions continued.
At the preliminary hearing for the injunction, BSDI contended that they
were simply using the sources being freely distributed by the University
of California plus six additional files. They were willing to discuss
the content of any of the six added files, but did not believe that they
should be held responsible for the files being distributed by the
University of California. The judge agreed with BSDI's argument and told
USL that they would have to restate their complaint based solely on the
six files or he would dismiss it. Recognizing that they would have a hard
time making a case from just the six files, USL decided to refile the suit
against both BSDI and the University of California. As before, USL
requested an injunction on the shipping of Networking Release 2 from
the University and on the BSDI products.
With the impending injunction hearing just a few short weeks away,
preparation began in earnest. All the members of the CSRG were deposed
as were nearly everyone employed at BSDI. Briefs, counter-briefs, and
counter-counter-briefs flew back and forth between the lawyers. Keith
Bostic and Kirk McKusick personally had to write several hundred pages
of material that found its way into various briefs.
In December 1992, Dickinson R. Debevoise, a United States District Judge
in New Jersey, heard the arguments for the injunction. Although judges
usually rule on injunction requests immediately, he decided to take it
under advisement. On a Friday about six weeks later, he issued a
forty-page opinion in which he denied the injunction and threw out all
but two of the complaints. The remaining two complaints were narrowed
to recent copyrights and the possibility of the loss of trade secrets.
He also suggested that the matter should be heard in a state court
system before being heard in the federal court system.
The University of California took the hint and rushed into California
state court the following Monday morning with a counter-suit against
USL. By filing first in California, the University had established
the locale of any further state court action. Constitutional law
requires all state filing to be done in a single state to prevent a
litigant with deep pockets from bleeding an opponent dry by filing
fifty cases against them in every state. The result was that if USL
wanted to take any action against the University in state courts,
they would be forced to do so in California rather than in their
home state of New Jersey.
And it gets intestesting when we discover that USL "stole" massive
amounts of BSD code and illegally removing the Copyright notices
from the source; the hunter becomes the hunted :
The University's suit claimed that USL had failed in their obligation
to provide due credit to the University for the use of BSD code in
System V as required by the license that they had signed with the
University. If the claim were found to be valid, the University asked
that USL be forced to reprint all their documentation with the
appropriate due credit added, to notify all their licensees of their
oversight, and to run full-page advertisements in major publications
such as The Wall Street Journal and Fortune magazine notifying the
business world of their inadvertent oversight.
Soon after the filing in state court, USL was bought from AT&T by
Novell. The CEO of Novell, Ray Noorda, stated publicly that he would
rather compete in the marketplace than in court. By the summer of 1993,
settlement talks had started. Unfortunately, the two sides had dug in
so deep that the talks proceed slowly. With some further prodding by
Ray Noorda on the USL side, many of the sticking points were removed
and a settlement was finally reached in January 1994. The result was
that three files were removed from the 18,000 that made up Networking
Release 2, and a number of minor changes were made to other files.
In addition, the University agreed to add USL copyrights to about 70
files, although those files continued to be freely redistributed.
And now the interesting part :
The lawsuit settlement also stipulated that USL would not sue any
organization using 4.4BSD-Lite as the base for their system. So, all
the BSD groups that were doing releases at that time, BSDI, NetBSD,
and FreeBSD, had to restart their code base with the 4.4BSD-Lite
sources into which they then merged their enhancements and improvements.
While this reintegration caused a short-term delay in the development
of the various BSD systems, it was a blessing in disguise since it
forced all the divergent groups to resynchronize with the three years
of development that had occurred at the CSRG since the release of
Networking Release 2.