Subject: Re: SCO's actions
To: Greg 'groggy' Lehey <>
From: Gilbert Fernandes <>
List: netbsd-advocacy
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
call 1-800-ITS-Unix.

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.

Gilbert Fernandes