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Path: sserve!newshost.anu.edu.au!munnari.oz.au!spool.mu.edu!howland.reston.ans.net!agate!overload.lbl.gov!dog.ee.lbl.gov!horse.ee.lbl.gov!torek From: torek@horse.ee.lbl.gov (Chris Torek) Newsgroups: comp.unix.bsd Subject: Re: Legalities Date: 12 Sep 1993 01:24:56 GMT Organization: Lawrence Berkeley Laboratory, Berkeley CA Lines: 53 Message-ID: <33832@dog.ee.lbl.gov> References: <1993Sep8.140654.12593@neb> <1993Sep9.015247.1@spcvxb.spc.edu> NNTP-Posting-Host: 128.3.112.15 In article <1993Sep9.015247.1@spcvxb.spc.edu> terry@spcvxb.spc.edu (Terry Kennedy, Operations Mgr.) writes: >[summary of various legal maneuverings, mostly accurate as far as I recall] > BSDI has nothing to do with the free BSD systems, other than the fact >that they all started from the common code base of Net-2. However, if BSDI >didn't defend Net-2, it's unlikely that the Net-2 software would be "legal", >since (by definition) free software doesn't have the funds for a massive >legal defense. Actually, this issue is a bit more complicated, as I see it. There are at least three categories of aspects: legal, moral/ethical, and practical. (I propose to studiously ignore any moral/ethical aspects, as these invariably degenerate into flamage even on PBS specials. :-) ) These touch on each other but are rather separable. h As far as the law goes, it is my understanding that, in the absence of any final ruling on any lawsuit, the code stands in a sort of `legal limbo'. That is, using it is neither strictly legal nor strictly illegal. Like Schroedinger's cat before the box is opened, the code is both alive and dead. Much law (especially contract law) is just a sequence of special cases, and the legality of any particular case is judged by its similarity to previous cases. If there are not enough sufficiently-similar previous cases, you get a situation like this one. Of course, the injunction ruling offers a peek at what the judge thinks. In this case, his written opinion says, more or less, that unless the plaintiff comes up with something more substantial, it looks like the defendents will win (and the distribution will have been ruled legal). The practical aspect of this, of course, is that this code, which is not `proven legal', has turned into a sort of scary monster. Let us suppose that Berkeley were to cease to defend their right to distribute net.2 and/or code based on net.2. This would have what has been referred to as a `chilling effect' on the availability of free and/or research software in general: Universities (and others) would legitimately be afraid to distribute software that might cause large corporations to sue them. In effect, this sets a precedent: if you are a large corporation with deep legal pockets, you can intimidate others for the price of a filing. On the other hand, if UCB wins or USL/USG/Novell drops the suit, the problem is lessened---moreso if UCB were to win than if it were simply dropped, but either would help. (The problem will, of course, never go away entirely. This is part of the price of the USA's legal system.) What about BSDI? Well, obviously they need to defend to stay in business. But there is something of a symbiotic relationship here: BSDI's defense encourages UCB's defense, and vice versa. In this particular case, what is good for BSDI is good for free software. I doubt that an adverse outcome for BSDI would be fatal to free software, but I *am* sure it would have a negative effect. -- In-Real-Life: Chris Torek, Lawrence Berkeley Lab CSE/EE (+1 510 486 5427) Berkeley, CA Domain: torek@ee.lbl.gov