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From: Terry Lambert <terry@cs.weber.edu>
Newsgroups: comp.unix.bsd.misc
Subject: Re: What is
Date: 24 Aug 1995 01:32:24 GMT
Organization: Utah Valley State College, Orem, Utah
Lines: 161
Message-ID: <41gkr8$263@park.uvsc.edu>
References: <CGD.95Aug20032937@BALVENIE.PDL.CS.CMU.EDU> <VIXIE.95Aug21180823@wisdom.home.vix.com>
NNTP-Posting-Host: hecate.artisoft.com
vixie@wisdom.home.vix.com (Paul A Vixie) wrote:
] If BSDi experiences any positive income differential due to its ability to
] prevent commercial competitors from using the "BSD" mark, will it be more or
] less than the amount of their legal fees for defending BNR2's public status?
] (Think carefully before you answer, now, that's a trick question and you are
] expected to know that the U C Regents would have settled with USL by lining
] the CSRG people up against a wall and shooting all of them; further, you are
] expected to understand that the NetBSD and FreeBSD people would have gone out
] of existence if they'd had to fight that legal battle on their own.)
This is a bit untrue. Having thought about it carefully, as you
suggested, the following salient points present themselves for
consideration:
1) USL sued BSDI because they were a commercial competitor,
and that's one of the ways business is done. Demoting
the competition is topologically equivalent to promoting
yourself, just a programming a Backgammon with "incredible
luck" is, in the limit, comparabile to programming it with
"incredible skill".
2) USL sued UCB because they had to to support their suit
against BSDI.
3) MIT and DEC (among others) were willing to "go to the
wall" on behalf of Net/2. Net/2 is still available, in
"violation" of the settlement terms, from both these
parties. MIT has more money than Bill Gates. One of
the possible options discussed at the time was the
purchase of USL by MIT.
4) The "NetBSD and FreeBSD people" were *intentionally* not
a legal entity at the time that USL started mailing the
"cease and desist distribution" letters. There was no
choke point for USL to successfully attack.
5) The "NetBSD and FreeBSD people" who were identified by
USL and sent "cease and desist" letters were largely
internationally located, and USL would have to pursue
the case under international treaty. In several cases,
the country of delivery's treaty status made this, in
fact, unenforcible.
6) When BSDI started throwing the excrement into the rotary
impeller, the "NetBSD and FreeBSD people"'s work was
mirrored in many places. This in itself is not a defense
against legal harrasment, but many of these mirrors were
in fact in non-Berne signatory countries, making any
demands regarding disposition of code legally unenforcible.
The same is true of the Net/2 code.
7) After the UCB/BSDI/USL "settlement", the "NetBSD and
FreeBSD people" were again sent letters demanding they
immediately cease and desist distribution of Net/2
sources. BSD, on the other hand, was given a grace
period under which they were allowed to continue binary
distribution of their product, during which time the
BSD4.4Lite release would be used to rederive their
product.
8) Key files from major kernel subsystems were declared off
limits, even though "trade secret" had not been proven.
Even so, trade secret law applies only to the original
discloser, not in fact to subsequent disclosures by a
receiving third party.
9) Had such claims of continuation of property rights through
sub distribution been made, counter claims of adverse use
could have been made. If property concepts are to be
strictly applied to "intellectual property", then the
property concept of "adverse use" and the establishment
of a "prescriptive lien" inder the auspices of "due
dilligence" not having been exercised by the property
holder come into play. If USL claimed that their trade
secrets (which were never proven) were real property not
subject to due dillgence requirements (like land rights),
then a prescriptive lien through adverse use can be
counterclaimed (like building a driveway without an
established right of way in violation of land rights).
This is a can of worms the software establishment has
been careful to avoid opening.
Note that this point could have been made more concisely but less
eloquently by the statement "you overestimate the importances of
BSDI to BSD derived systems in general".
The combination of the restriction of single files from a large
number of kernel subsystems coupled with the initial lack of a
grace period period for the "NetBSD and FreeBSD people" similar
to that which was granted to BSDI should lead a member of either
of those camps to be suspicious and cautious of any possible
legal encumberments, regardless of their source being friendly
or otherwise.
This is not to say that I object to the terms under which the
use of the BSD trademark has been granted by the trademark holder.
On the other hand, I note that 386BSD was trademarked prior to
the granting of the BSD trademark to BSDI.
I further note that it is my opinion that both "BSD" and "UNIX"
constitute terms in common usage. I believe "UNIX" to have
lost its brand identification in the same way that "Asprin" did,
and I believe that the term "BSD" was in sufficiently common
usage prior to the trademark having been granted that the grant
was in fact in error -- especilly considering that "BSD" is a
substring of the "386BSD" trademark held by William Jolitz.
I find the opinions regarding NetBSD's and FreeBSD's continued
existance without the intervention of BSDI to be at best exagerated,
and at worst, simply erroneous.
] I wish I understood why what UUNET/BSDi has done is seen as "wrong".
"BSD" is a term in common usage and as such not subject to
trademark... or rather, has proven subject to trademark, when
in fact trademark should have been denied. It is the obtaining
of the trademark itdelf which is, in fact, objectionable, not
who has obtained it.
] Other than the highly abstract act of trademarking "BSD" what have
] they done that's pissed anybody off?
I think you are misunderstanding the difference between "pissed
off" and "anxious".
] What other use have they prevented which you fine folks think
] should not have been prevented?
Use of the term "BSD" as an adjective to describe other commercial
BSD 4.4Lite or BSD Net/2 derived operating systems. Note "prevented"
is not entirely accurate... "proscribed" or "interdicted" would be
a better description. The common goal of both the NetBSD and
FreeBSD projects is to have people/companies use their code. The
range of uses has now been restricted.
] What use have they made which you folks think ought not to have
] been made?
None. Use of a common-usage term is not, by definition,
objectionable.
] I've stated the "good" that they are seeking to protect -- now
] can someone please tell me the "harm" that's been done?
"Who will watch the watchers?" only becomes a problem once you
have watchers. Now we have watchers. It is unsettling... see
us: we are unsettled.
Regards,
Terry Lambert
terry@cs.weber.edu
---
Any opinions in this posting are my own and not those of my present
or previous employers.