Date: Thu, 20 Nov 2003 23:23:04 +0100 From: ".VWV." <victorvittorivonwiktow@interfree.it> To: <advocacy@freebsd.org> Subject: Re: Re: Re: SCO goes after BSD? Message-ID: <000c01c3afb4$de7b9140$f6aeabd4@workstation> References: <XFMail.20031119135153.jhb@FreeBSD.org> <3FBCB95B.44193DF2@mindspring.com>
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It seems the following, is a very interesting report. Please, read carefully once more, then write your opinions. I have also read, the main target of the 'bastards' seems the Novell-SuSE at the moment, sure not FreeBSD. In any case, they'll look for a new target every day, until they will exist. Maybe it could be a foreseeing choice for the FreeBSD Foundation, to start a legal claim against SCO, if those people will threaten the Berkeley's rights. .VWV. Terry Lambert wrote: > A more likely target would be Cisco Systems or practically any > company using TCP/IP, given SCO's theory of what constitutes a > derivative work. > > For the most part, however, the 1994 settlement agreement is > unassailable from a lot of different perspectives: > > 1) It's a settlement agreement which both parties agreed > to be legally binding. An attempt to overturn it would > open them to a Contempt of Court charge, at a minimum. > > 2) USL was in violation of UCB Copyright on many printed > materials; reopening this would make SCO subject to > the counterclaim of copyright infringement. If they > lost, they would b liable for collecting every scrap of > paper on which the material or derivative works have > been printed. How many Ultrix manuals did DEC print? > > 3) Much of the code in SVR4.x was imported from the Net/2 > sources out of Berkeley. Almost all of the ntworking. > They will have a hard time proving provenance of their > code. > > 4) Part of the counterclaim's cause of action was Copyright > and license violation by USL, by virtue of removal of the > Copyright and license statements in the header files. > > 5) Much of the code that makes up the SVR4 networking code > was developed under contract to DARPA. Despite the recent > slapping of a GPL on things developed with public funds, > things developed with public funds are technically requied > to be in the public domain (i.e. slapping a license on top > of it before releasing it is not allowed). > > 6) One of the contributing factors to the settlement was the > judge effectively telling USL "I think you have a very > weak case, and will probably rule against you". > > 7) SCO is an assign of the rights in the UNIX source code, and > those rights were specifically limited by the settlement > agreement. SCO is therefore a priori bound by that agreement. > > 8) USL's primary legal theory at the time was "trade secret > disclosure"; however, trade secret law states that no matter > how a secret is disclosed, once it is disclosed, it is no > longer a secret. This is generally useful in this case, > since SCO can only go after the disclosing party for damages, > and can not limit further propagation of the trade secret as > if it were still secret (this is what they attempted to do); > one of the judge's arguments was that they were attempting > to obtain the moral quivalent of patent protection without > disclosure, and that this attempt was unconstituional. > > 9) The FreeBSD and NetBSD projects, at least, have auditable > records of every line of code added since the 4.4 BSD-Lite > code was imported into the tree. For them to come after > FreeBSD, as an example, they would need to overturn the > settlement agrement, refile and win the case against UCB, > and then prove that their trade secrets are still secret > after having been published for over a decade and a half. > > 10) The UCB license was the old Western Electric license, which > did not have a non-disclosure clause in its original form; > hence the Lyon's book. > > 11) When UNIX was invented and first published, USL was a part > of AT&T, and AT&T was specifically enjoined from making a > profit of any kind off of software -- including a paper > profit in the form of the accumulation of intellectual > property -- as a result of the 1956 consent decree, under > which they were legally acknowledged to be a monopoloy, and > thereafter had to operate as a regulated monopoly. It's > not clear that their sale of USL would permit USL to later > claim intellectual property from conversion of illegally > accumulated assets. > > 12) If SCO's theory of derivation is correct, then SVR4 is a > derivative work of BSD UNIX and publically funded work. > > During the original case, a number of well known people offered to > testify a witnesses on behalf of UCB; among these were Dennis Ritchie > and Ken Thompson, as well as other prominent computer scientists with > an involvement in UNIX since its inception. > > Another interesting thing that happened was that MIT offered to fund > the defense, and offered their patent portfolio as ammunition (I > still get annoyed at UCB turning down this offer). > > FWIW, I'm personally willing to testify as an expert witness as a > former Novell/USG employee (Novell/USG was the UNIX Systems Group > that was formed after the Novell acquisition of USL). I personally > camped out in Mike DeFazio's (then Novell VP over Novell/USG, and > the man who eventally dropped the lawsuit) office with a number of > other Novell/USG employees to get 386BSD, FreeBSD, and NetBSD the > same deal that USL was giving BSDI. Originally they sent a cease > and desist order to everyone they could find, Jordan included, and > there was no grace period for continuing to ship code (like BSDI > was being allowed) until the 4.4-Lite code was made available. I'm > pretty sure Jim Freeman and others would be similarly inclined. > > Finally, remember that civil cases are won or lost on the basis of > a preponderance of evidence. It is much easier for thousands of > angry engineers who know the code to produce such evidence than it > is for lawyers who don't to manufacture it. Going by number of > reams of paper alone, ther's no way SCO could win, if it came down > to it. > > In summary, the legal case against any SCO claim against UCB or > claim on BSD code is very, very strong. > > -- Terry
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