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Newsgroups: comp.unix.bsd Path: sserve!manuel!munnari.oz.au!uunet!unislc!erc From: erc@unislc.uucp (Ed Carp) Subject: Re: AT&T sues BSDI & Our Retaliation X-Newsreader: Tin 1.1 PL4 References: <1992Aug5.224337.6733@cirrus.com> Message-ID: <1992Aug10.225150.29474@unislc.uucp> Organization: Unisys Corporation SLC Date: Mon, 10 Aug 1992 22:51:50 GMT Lines: 55 dhesi@cirrus.com (Rahul Dhesi) writes: : Can authors of freely-redistributable software retroactively prevent AT&T : from using it? Could the Regents of UCB do this, for example? Nope. Not unless the original agreemment says that they can change it at will. : My understanding is that nothing in US law prevents an author from : retroactively changing the copyright terms, provided they are consistent : with copyright law and no enforcible contract is breached. There is no : enforcible contract unless there is "consideration" (i.e., payment). : This means that, for example, if UCB releases some copyrighted code and : permits others to copy it under certain conditions, UCB can retroactively : change its terms, provided it does not try to retroactively and : unilaterally change a valid contract. That's the problem - no sane person would sign a contract that gave the other party the right to unilaterally change the terms without negotiation. As to your theory that there is no enforceable contract without "consideration", that's all it is - a theory. Current US jurisprudence doesn't support this. For example, if I release code out onto the net and place a copyright notice on it, that constitutes a valid contract between myself and whoever gets the code. There's no "consideration" here. But if they take my copyright notice off, put their name on it, and try and sell it, then I have a clear case of copyright infringement. Of course, there are some folks out there that contend that if you release a piece of software to the net, you in effect place it in the public domain, but I don't believe a judge would buy that argument. : The question, then, is whether AT&T has a valid and irrevocable contract : with UCB that allows AT&T to use UCB code. I believe 4.2BSD, 4.3BSD, and : 4.3BSD-tahoe (and probably 4.3BSD-renoe too) were distributed subject to : signed license agreements, and consideration was required; so if AT&T : signed such licenses, it can probably use the code from those releases : and UCB may not be able to retroactively stop this. But if AT&T took any : Net/2 code and no license was signed and paid for, chances are that no : enforcible contract exists. If this is so, and if any Net/2 code found : its way into the SVR4 kernel, then there could be some legal fireworks. No contract is irrevocable - that's why they write termination clauses. As to the question of whether it's a valid contract or not, who knows? I suppose it'll come down to a judge to decide. I hope he or she knows something about computers... :) Of course, a license and a copyright are two different things (they don't *have* to be, though) - but regardless, the issue doesn't revolve around whether or not a contract exists or whether a license agreement was signed - the issue is whether BSDI is infringing on AT&T's copyright by distributing what AT&T claims is its "intellectual property" covered by copyright law. -- Ed Carp, N7EKG erc@apple.com 801/538-0177 "This is the final task I will ever give you, and it goes on forever. Act happy, feel happy, be happy, without a reason in the world. Then you can love, and do what you will." -- Dan Millman, "Way Of The Peaceful Warrior"