SCO goes after BSD?

.VWV. victorvittorivonwiktow at
Thu Nov 20 14:23:07 PST 2003

It seems the following, is a very interesting report. Please, read carefully
once more, then write your opinions.

I have also read, the main target of the 'bastards' seems the Novell-SuSE at
the moment, sure not FreeBSD. In any case, they'll look for a new target
every day, until they will exist.

Maybe it could be a foreseeing choice for the FreeBSD Foundation, to start a
legal claim against SCO, if those people will threaten the Berkeley's


Terry Lambert wrote:

> A more likely target would be Cisco Systems or practically any
> company using TCP/IP, given SCO's theory of what constitutes a
> derivative work.
> 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
> code.
> 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
> accumulated assets.
> 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
> to it.
> In summary, the legal case against any SCO claim against UCB or
> claim on BSD code is very, very strong.
> -- Terry

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