*BSD News Article 3465


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From: hedrick@dumas.rutgers.edu (Charles Hedrick)
Newsgroups: alt.suit.att-bsdi,comp.unix.bsd
Subject: Re: UNIGRAM's article on the USL-BSDI suit
Message-ID: <Aug.8.19.14.25.1992.26820@dumas.rutgers.edu>
Date: 8 Aug 92 23:14:26 GMT
References: <45961@shamash.cdc.com> <25138@dog.ee.lbl.gov> <1992Aug3.143259.23897@crd.ge.com> <5486@mccuts.uts.mcc.ac.uk> <1992Aug5.003803.28740@engr.uark.edu>
Followup-To: alt.suit.att-bsdi
Organization: Rutgers Univ., New Brunswick, N.J.
Lines: 56

tep@engr.uark.edu (Tim Peoples) writes:

>   I just finished reading the ammended complaint that added the Regents
>to the suit and from what I got out of it USL is not claiming that there
>are SPECIFIC PARTS that contain infingements, but that NET2, as a whole,
>is an infringement.  So, go figure.....

Normally, when someone wants to implement a system that will compete
with an existing system, they do everything possible to isolate the
development effort from the existing system.  If they need to look at
the existing code, they have someone do it who is not part of the
development team, and that person produces only functional
specifications, what are then used by the developer.  This is the
"clean room" approach.  Berekeley has done something interesting, for
which there may be no legal precedent: they have started with another
vendor's product, modified it, and then attempted to remove vestiges
of the original.  The reason this is legally dangerous is that when
you start with someone else's product and modify it, what you have is
a "derived work", which is still covered by the original copyright.
The question is whether you can continue modifying it, and at the
point where none of the original is left it becomes underived.  If
this has been litigated before, I haven't heard of it (which might not
be surprising, since I'm not a lawyer).  I could imagine that the
status as a derived work would continue.

Note also that Unix is made up of a number of files.  Is the copyright
only on the individual files, or on the work as a whole?  If it's on
the individual files, then one could purify the code by rewriting it
file by file.  But I would guess ATT will claim that it is on the work
as a whole.  Thus rewriting it file by file might not remove the
status of BSD as whole as a derived work.  If this is the argument
they are going to use, then even a comparison that showed there to be
no similarity might not be conclusive.  This may be the reason that
the suits do not contain detailed lists of where copying occured
(though it's not clear to me that they would in any case), and the
reason that ATT is not interested in comparing only snapshots.

The issue is also complicated by the fact that ATT seems to be
claiming both trade secret and copyright protection for the same work.
Since copyright protection is intended only for published works, it's
not clear whether this is valid.

In my view, this case is full of strange and interesting legal issues,
which may make much of the discussion here irrelevant.  I have a
suspicion that the decision may turn on details of these issues, and
not on what computer scientists would regard as the substance: whether
BSD has any longer any ATT code in it.  I've looked at some decisions
in areas like this, and about all one can say with any certainty is
that many judges have a very different view of the world than we do,
and that it's hard to predict even what questions they will consider
relevant, much less what conclusions they will come to.  There are
some signs that the much of the legal profession is beginning to
realize what a disaster they are creating, and that they are moving
towards a sensible view.  It would be nice to think that this case
would be handled in such a light.  But I'm afraid I don't trust our
legal system that far.