The Daemon, the GNU and the Penguin - Ch. 13 ~ by Dr. Peter H. Salus

by Pamela Jones

June 23 2005

Here is chapter 13 of our ongoing history of Free and Open Source, The Daemon, the GNU and the Penguin, by Dr. Peter H. Salus.

Here are the earlier chapters:

If you wish to review any of the legal documents he references, our Legal Docs [ ] page has a section on BSDI documents [ ], including the long-secret 1994 USL-Regents of California Settlement Agreement [ ].

Judge Dickinson R. Debevoise's 1993 Opinion in USL v. BSDI on the parties' various motions to dismiss/amend and USL's motion for preliminary injunction is here [ ], which found, among other things, the following regarding copyright and trade secrets:

Consequently, I find that Plaintiff has failed to demonstrate a likelihood that it can successfully defend its copyright in 32V. Plaintiff's claims of copyright violations are not a basis for injunctive relief. . . .

After reviewing the affidavits of Plaintiff's and Defendants, experts, a great deal of uncertainty remains as to what trade secrets Net2 might contain. One fact does seem clear: the header files, filenames, and function names used by Defendants are not trade secrets. Defendants could have printed these off of any of the thousands of unrestricted copies of Plaintiff's binary object code. (Kashtan Aff. at  9-11.) Moreover, the nonfunctional elements of the code, such as comments, cannot be trade secrets because these elements are minimal and confer no competitive advantage on Defendants. The copied elements that contain instructions, such as BREAD and CPIO, might perhaps be trade secrets, but Defendants' experts have argued persuasively that these instructions are either in the public domain or otherwise exempt. As Defendants have repeatedly emphasized, much of 32V seems to be publicly available. . . .

Thus, even if all of the pieces of the 32V code had been thoroughly revealed in publicly available literature, the overall organization of the code might remain a trade secret unless it too had been disclosed.

On the present record, however, it is impossible to determine whether the overall organization of Net2 has been disclosed. The record itself contains little information directly pertinent to this issue. Moreover, the parties' submissions hint that some of 32V's organization may already be publicly available. . . . .

A further consideration is that 32V's overall organization may not even be protectable in the first place. Berkeley's license to use 32V protects 32V derivatives only to the extent that they contain certain proprietary information. If Berkeley excises the proprietary information (as it attempted to do with Net2), Berkeley is free to distribute derivatives without restriction. Berkeley has utilized this freedom in the past to distribute a number of non-proprietary systems and portions of systems, all apparently without objections from AT&T. These distributions, to some degree, must have disclosed the overall organization of 32V. Thus, Berkeley's activities under the licensing agreement, and AT&T's acceptance of those activities, are evidence that Berkeley and AT&T interpreted the agreement to allow the disclosure of at least some of 32V's organization.

In summary, I find that I am unable to ascertain whether any aspect of Net2 or BSD/386, be it an individual line of code or the overall system organization, deserves protection as Plaintiff's trade secret. Since Plaintiff has failed to provide enough evidence to establish a "reasonable probability" that Net2 or BSD/386 contain trade secrets, I find that Plaintiff has failed to demonstrate a likelihood of success on the merits of its claim for misappropriation of trade secrets. No preliminary injunction will issue.


The Daemon, the GNU and the Penguin

~ by Peter H. Salus

Chapter 13. USL v The Regents of the University of California

From late 1986 on, Keith Bostic would stand up at each USENIX Conference and announce the progress of his -- the CSRG's -- project: about 35% of the code was AT&T license free; about 55%; about 77%... The progress may have seemed slow at times, but the was always some progress.

And there were always loud cheers and resounding applause.

AT&T's lawyers had started off on the wrong foot in the mid-1970s; the fee structure made AT&T-license-free UNIX a financial necessity. Among others, John Gilmore nudged the CSRG to produce a license-free version. After all, it was clear that AT&T hadn't objected to Minix, which was a UNIX-like system with no AT&T code.

In November 1988, at the BSD Workshop in Berkeley, Keith, Mike Karels and Kirk McKusick announce the completion and availability of BSD Networking Release 1.

NET 1 was a subset of the then-current Berkeley system. It was quite similar to 4.3-Tahoe, including source code and documentation for the networking portions of the kernel, the C library and utility programs. It was available without evidence of any prior license (AT&T or Berkeley), and was (re)distributed via anonymous FTP. The source carried a Berkeley copyright notice and a legend that allowed redistribution with attribution.

(The Berkeley license was, and still is, different from the GPL. Keith and rms had debated the various aspects of the licenses repeatedly, without convergence. I will discuss this later.)

In June 1991, at the USENIX Conference in Nashville, BSD Networking Release 2 was available. NET 2 contained far more than just networking code and, like NET 1, was available with no prior license. The new features included a new virtual memory system (derived from Carnegie-Mellon's Mach system, which had been ported at the University of Utah) and a port to the Intel 386/486.

It was nearly the end of the line for the CSRG. Karels left Berkeley in 1992; Bostic and McKusick, in June 1993. But, NET 2 was a US-Russia collaboration, with contributions by Bill Jolitz, Donn Seeley, Trent Hein, Vadim Antonov, Mike Karels, Igor Belchinsky, Pace Willisson, Jeff Polk, and Tony Sanders. It was turned into a commercial product, known as BSDI (= Berkeley Software Design, Inc.) and was complete by the end of 1991 and released to the public on April 10, 1993 as 1.0, the long delay being the consequence of UNIX Systems Laboratories (USL) filing suit to prevent BSDI from shipping its product.

USL filed for an injunction barring distribution of "BSD/386, pending trial, arguing that BSD/386 infringed USL's copyright in its 32V software and misappropriated USL trade secrets."1 The Court denied USL's request for a preliminary injunction on March 3, 1993, ruling that USL had "failed to show a likelihood of success on either its copyright claim or its trade secret claim."

On March 30, 1993, Judge Dickinson Debevoise of the US District Court of New Jersey reaffirmed his denial of USL's motion for a preliminary injunction against BSDI. The Court found that the 32V source code had been distributed without a copyright notice. The Court rejected USL's argument that the publication of 32V was sufficiently limited to avoid a forfeiture, and thus found that USL had failed to establish that BSD/386 contained any USL trade secrets.

USL subsequently filed a motion for reconsideration, asking the District Court to hold a new hearing on whether USL had published 32V without a copyright notice. USL argued that the Court's prior ruling was based on an incorrect finding as to the number of copies distributed. (USL's motion for reconsideration did not challenge the Court's ruling that USL had failed to establish trade secret misappropriation.)

The Court denied USL's motion for reconsideration. Although the Court amended its prior factual finding as to the number of copies distributed, it found that the number was not critical to its ruling on the issue of publication without notice.

It was just under 20 years since Ken had delivered that first UNIX paper at SOSP and began receiving requests for the software.

It was 15 years since UNIX NEWS became ;login: and the "UNIX Users Group" turned into USENIX.

And, through all of this, Western Electric, AT&T, and now USL had learned nothing about the nature of the user community.

What BSDI (and others, like mt Xinu) were trying to do was ensure the continued development, growth and use of the UNIX operating system. The suit by USL was an attempt to protect something of value. But the value had been discovered too late. Maybe Ritchie and Thompson had handled the system carelessly in the mid-1970s; maybe BTL employees inadvertently gave UNIX to the public without any significant restriction. But the users, like O'Dell and Kolstad, Coulouris and Lions, saw the value.

BSDI had distributed pre-production releases of BSD/386 (Beta version). It now began international distribution. Full source was priced at $1000. (In the January/February 1994 ;login:, Lou Katz wrote: "It works! It works!").

Because of the way the licenses had been granted to the University of California, the Regents of the University had been included in USL's suit. In June 1993, the Regents struck back, filing suit against USL for not complying with agreements made with the CSRG.

In the meantime, Novell acquired USL. A decade later, it is still unclear exactly what USL believed it was selling, or what Novell thought it was buying.

To take but one example, the "PROPRIETARY NOTICE" on the System V errno.h file reads:

This source code is unpublished proprietary information constituting, or derived under license from AT&T's UNIX (r) System V. In addition, portions of such source code were derived from Berkeley 4.3 BSD under license from the Regents of the University of California.

USL had filed suit in New Jersey, the home of AT&T and Bell Labs (and USL), clearly thinking that this would yield an advantage in their suit. When the USL v BSDI and Regents suit was dismissed, the Regents filed suit in California.

On Friday, February 4, 1994, Novell and the University of California agree to drop all relevant suits and countersuits. BSDI immediately announced the availability of a release based on "4.4BSD-Lite."

"We are delighted to settle with USL so that we can devote our full efforts to creating products and serving our customers," Rob Kolstad, president of BSDI, said to me. (I will not go into the corporate history of BSDI here.)

There is no question that The Open Group "owns" the UNIX trademark. There are many questions as to whether any one entity "owns" UNIX. In 1995, Novell executed an "Asset Purchase Agreement" with the Santa Cruz Operation, though exactly what was purchased is unclear a decade later.

While both The SCO Group (a successor to the Santa Cruz Operation) and Novell claim rights to the UNIX source code, many elements of that code carry copyright notices from the University of California and other companies and individuals.

All of this is important because of the various suits filed by The SCO Group and the ownership claims made. It is clear to me that while AT&T owned a good portion of several versions of System V, as a result of the incorporation of code from the CSRG and other sources, they never had full rights to all the source of any of the versions. Exactly what was conveyed to Novell, from Novell to the Santa Cruz Operation, and from the latter to The SCO Group, may be adjudicated in one of the current suits.

1 The story of 32V is in Chapter 6, above.

Dr. Salus is the author of "A Quarter Century of UNIX" [ ] and several other books [ ], including "HPL: Little Languages and Tools", "Big Book of Ipv6 Addressing Rfcs", "Handbook of Programming Languages (HPL): Imperative Programming Languages", "Casting the Net: From ARPANET to INTERNET and Beyond", and "The Handbook of Programming Languages (HPL): Functional, Concurrent and Logic Programming Languages". There is an interview with him, audio and video,"codebytes: A History of UNIX and UNIX Licences" [ ] which was done in 2001 at a USENIX conference. Dr. Salus has served as Executive Director of the USENIX Association.

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12:29 PM EDT

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