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Path: sserve!manuel!munnari.oz.au!uunet!crdgw1!newsun!gateway.novell.com!terry From: terry@npd.Novell.COM (Terry Lambert) Newsgroups: comp.unix.bsd Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!! Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD Message-ID: <1992Jul22.212903.29537@gateway.novell.com> Date: 22 Jul 92 21:29:03 GMT References: <l6nibgINNje6@neuro.usc.edu> <1992Jul21.142631.14517@mnemosyne.cs.du.edu> <mcuddy.711795634@fensende> Sender: news@gateway.novell.com (NetNews) Organization: Novell NPD -- Sandy, UT Lines: 116 Nntp-Posting-Host: thisbe.eng.sandy.novell.com Newsgroups: comp.unix.bsd Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!! Summary: Expires: References: <l6nibgINNje6@neuro.usc.edu> <1992Jul21.142631.14517@mnemosyne.cs.du.edu> <mcuddy.711795634@fensende> Sender: Followup-To: Distribution: Organization: Novell NPD -- Sandy, UT Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD In article <mcuddy.711795634@fensende> mcuddy@fensende.Rational.COM (Mike Cuddy) writes: >jjsmith@nyx.cs.du.edu (Jonathan J. Smith) writes: > > >>Hrm well to the uneducated in legalieze (me) this sounds just a tad unlikely, >>First of I believe that AT&T has to PROVE that said things actually were >>based on derived from intellectual property of AT&T. I also believe that >>burden of proof lies with AT&T. To me it sounds a shade unlikely that they >>could possibly prove that , I COULD be totaly wrong here however. Just >>doubting that is will happen i guess, sounds way to unreasonable. > >Heh, you forget that USL/ATT have lots of money for lawyers. How many 5 to 10 >thousand dollar lawsuits can BSDI withstand? 5? 10? That's a lot of money >for a startup, however, it's piss in a bucket for ATT/USL. *SIGH* Do not >forget the principles this country is decaying under: Only the financially >advantaged win :-(. I would think that there are several issues involved here: 1) Trademark infringement Is the University of California, Berkeley, entitled to use the AT&T trademark because it is an AT&T licensee? If so, the trademark is defensible on the basis that it is held by AT&T and licensed. The suit may be pressed on grounds that use of the "1-800-ITS-UNIX" appearing in the BSDI materials constituted use of the trademark without footnoting the fact that "UNIX is a registered trademark of AT&T and Bell Laboratories" for that particular use. Even if the trademark is clearly identified due to other use in the materials, this is a nit that AT&T is entitled to pick. Under what conditions would this not be true? The first is that if UCB is not entitled to use of the trademark, a case can be made that UCB's longstanding use constitutes "common usage", and thus "UNIX" is no longer a trademark. The second case is if the initial use of the trademark is footnoted. This implies inclusion of all subsequent references in the materials. 2) Copyright infringement I do not think it is possible to pursue a case on this basis; this is due in large part to the nature of the developement effort that took place. One place where this might fall down would be infringement on the basis of "look and feel". I think that it would be possible to argue that the "look and feel" of the AT&T OS derives in large part from UCB code that is not proprietary to AT&T. The problem with this approach, as opposed to simple copyright violation by inclusion of AT&T dervied source, is that the burden of proof for "look and feel" would be easily satisfied, and that it would then be up to BSDI (or UCB) to prove that the "look and feel" is derivitive of UCB code. This could be rather expensive. I think AT&T's failure to bring suit against Andy Tannenbaum rules this out. 3) Trade secret infringement I do not believe this is defensible at all. First, there has not been sufficient effort by AT&T to protect their trade secrets. Allowing the Bachman book, among many, many other titles to continue to be published, each of which disclose in large measure AT&T's "trade secrets". I think it would be difficult for AT&T to find a particular "trade secret" to litigate over; there are too many counter examples. This could still be effective, as it will be very expensive coming up with counter examples. All of these issues fail from the standpoint of BSDI's willingness to drag UCB, CSRG, and the Jolitz's into the matter. Using any of these as an example, it would be trivial to provide proof of "adverse use". This would have the effect of placing litigation issues brought by AT&T into the public domain, thereby restricting. Obviously, UCB and CSRG are much better targets than the Jolitz's, in this case, as any suits brought against the Jolitz's for their release of code would be considered to be contemporaries of the suits against BSDI, and therefore would not be binding on the court (this has yet to reach appellate level). I think it is possible to exempt UCB, CSRG, and the Jolitz's from this by declaration that their disclosure constitutes "educational use" within the terms of the initial license to UCB, and still go on to prosecute BSDI on the basis of violation of the terms of distribution from UCB, as set forth in the initial license. I have not read the AT&T to UCB license, but I suspect that the terms were not written to cover this eventuality; after all, there was not a commercial product based on AT&T's intellectual property at the time of UCB's being granted a license. If the AT&T/UCB agreement could be cast in this light, it's definitely the tack I would use to press the suit on AT&T's behalf. *** prediction alert *** prediction alert *** prediction alert *** I think that AT&T will win; not on the merits of reality, but on the merits of their arguments. It will be difficult, without educating the judge to the point of a CS degree, to draw the distinctions necessary to prove non-infringement by BSDI. It certainly *looks* like BSDI is infringing to a layman, and that's what the judge will be. I seriously doubt that the judge will be willing to set the precedent of applying property law to intellectual property (even though I think it applicable in this way) by making a decision for "adverse use", a [physical] property law concept. This will certainly bode ill for all of us "contaminated" by knowledge of "AT&T concepts" drummed into us in college. Terry Lambert terry_lambert@gateway.novell.com terry@icarus.weber.edu --- Disclaimer: Any opinions in this posting are my own and not those of my present or previous employers.