SCO goes after BSD?
tlambert2 at mindspring.com
Thu Nov 20 04:56:54 PST 2003
John Baldwin wrote:
> On 18-Nov-2003 Michal Pasternak wrote:
> > Arjan van Leeuwen [Tue, Nov 18, 2003 at 10:19:07PM +0100]:
> >> What to think of this?
> > So, who would be attacked by SCO in case they decide to run against BSD
> > systems? Which one of big-bucks-worldwide-famous corporations would it be?
A more likely target would be Cisco Systems or practically any
company using TCP/IP, given SCO's theory of what constitutes a
For the most part, however, the 1994 settlement agreement is
unassailable from a lot of different perspectives:
1) It's a settlement agreement which both parties agreed
to be legally binding. An attempt to overturn it would
open them to a Contempt of Court charge, at a minimum.
2) USL was in violation of UCB Copyright on many printed
materials; reopening this would make SCO subject to
the counterclaim of copyright infringement. If they
lost, they would b liable for collecting every scrap of
paper on which the material or derivative works have
been printed. How many Ultrix manuals did DEC print?
3) Much of the code in SVR4.x was imported from the Net/2
sources out of Berkeley. Almost all of the ntworking.
They will have a hard time proving provenance of their
4) Part of the counterclaim's cause of action was Copyright
and license violation by USL, by virtue of removal of the
Copyright and license statements in the header files.
5) Much of the code that makes up the SVR4 networking code
was developed under contract to DARPA. Despite the recent
slapping of a GPL on things developed with public funds,
things developed with public funds are technically requied
to be in the public domain (i.e. slapping a license on top
of it before releasing it is not allowed).
6) One of the contributing factors to the settlement was the
judge effectively telling USL "I think you have a very
weak case, and will probably rule against you".
7) SCO is an assign of the rights in the UNIX source code, and
those rights were specifically limited by the settlement
agreement. SCO is therefore a priori bound by that agreement.
8) USL's primary legal theory at the time was "trade secret
disclosure"; however, trade secret law states that no matter
how a secret is disclosed, once it is disclosed, it is no
longer a secret. This is generally useful in this case,
since SCO can only go after the disclosing party for damages,
and can not limit further propagation of the trade secret as
if it were still secret (this is what they attempted to do);
one of the judge's arguments was that they were attempting
to obtain the moral quivalent of patent protection without
disclosure, and that this attempt was unconstituional.
9) The FreeBSD and NetBSD projects, at least, have auditable
records of every line of code added since the 4.4 BSD-Lite
code was imported into the tree. For them to come after
FreeBSD, as an example, they would need to overturn the
settlement agrement, refile and win the case against UCB,
and then prove that their trade secrets are still secret
after having been published for over a decade and a half.
10) The UCB license was the old Western Electric license, which
did not have a non-disclosure clause in its original form;
hence the Lyon's book.
11) When UNIX was invented and first published, USL was a part
of AT&T, and AT&T was specifically enjoined from making a
profit of any kind off of software -- including a paper
profit in the form of the accumulation of intellectual
property -- as a result of the 1956 consent decree, under
which they were legally acknowledged to be a monopoloy, and
thereafter had to operate as a regulated monopoly. It's
not clear that their sale of USL would permit USL to later
claim intellectual property from conversion of illegally
12) If SCO's theory of derivation is correct, then SVR4 is a
derivative work of BSD UNIX and publically funded work.
During the original case, a number of well known people offered to
testify a witnesses on behalf of UCB; among these were Dennis Ritchie
and Ken Thompson, as well as other prominent computer scientists with
an involvement in UNIX since its inception.
Another interesting thing that happened was that MIT offered to fund
the defense, and offered their patent portfolio as ammunition (I
still get annoyed at UCB turning down this offer).
FWIW, I'm personally willing to testify as an expert witness as a
former Novell/USG employee (Novell/USG was the UNIX Systems Group
that was formed after the Novell acquisition of USL). I personally
camped out in Mike DeFazio's (then Novell VP over Novell/USG, and
the man who eventally dropped the lawsuit) office with a number of
other Novell/USG employees to get 386BSD, FreeBSD, and NetBSD the
same deal that USL was giving BSDI. Originally they sent a cease
and desist order to everyone they could find, Jordan included, and
there was no grace period for continuing to ship code (like BSDI
was being allowed) until the 4.4-Lite code was made available. I'm
pretty sure Jim Freeman and others would be similarly inclined.
Finally, remember that civil cases are won or lost on the basis of
a preponderance of evidence. It is much easier for thousands of
angry engineers who know the code to produce such evidence than it
is for lawyers who don't to manufacture it. Going by number of
reams of paper alone, ther's no way SCO could win, if it came down
In summary, the legal case against any SCO claim against UCB or
claim on BSD code is very, very strong.
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