Subject: Re: Legal Question

From: Dion Johnson <[email-masked]>
Date: Mon, 15 Mar 1999 12:45:46 -0800

On Mon, Mar 15, 1999 at 08:52:18PM +1100, Warren Toomey wrote:
> Hi Dion,
> 	How's things going? I have a tricky legal question, and I don't
> know if you/SCO are allowed to answer it, but anyway....

I will try, but I need more info.  See below.

> 
> As you know, a lot of software released by UCB in their BSDs in the 80s and
> 90s was code contributed from elsewhere. Obviously (to us), some of this
> code was derived from AT&T/USL code, and other things (like the TCP/IP code,
> the virtual memory, the fast file system, and applications like Sendmail)
> were not derived from AT&T/USL code at all.
> 
> Now, I have a couple of contributors to 2.xBSD and 4.xBSD who are annoyed
> because they are unsure of the legal status of their code. They believe
> that one of the terms of the UCB/USL agreement is that _all_ BSD releases
> prior to 4.4-Lite are _wholly_ tainted, and so their own code is now tainted.

Who has advised them that this tainting exists?

Do they see ATT or USL copyrights in any of the sources they are
distributing?  If so, please send me a list of the modules in which
such copyrights appear, and a few of the sample  headers that show
date/time/copyright/etc

> Is there any way that SCO can clear up this legal ambiguity?

I will see what I can find out.  It's been a long time since I've
annoyed our legal staff and I am sure they are wondering if I'm OK.

> What I am asking for is: can these people publicaly release the old
> versions of their software (which happened to be bundled in the BSDs)
> without being sued?

I would say they are quite safe, but that's just my opinion, not an official
SCO "permission".

> 
> I know that the details of the UCB/USL agreement are confidential, but
> this these contributors.

Garbled transmission above.

> 
> If you can help in any way, I'd certainly appreciate it!

See what you can find out from your colleagues, these developers.
-Dion

> Many thanks again,
> 	Warren

---

From: Warren Toomey <wkt>
Date: Mon, 15 Mar 1999 20:52:18 +1100 (EST)

Hi Dion,

 

Many thanks again,

	Warren

---

From: Warren Toomey <wkt>
Date: Tue, 16 Mar 1999 09:07:32 +1100 (EST)

> I will try, but I need more info.  See below.

The trickiness in this problem is because some of it can't be revealed.
Here's the story:

	UCB brought out the 2nd Networking release (aka Net2) in 1991.
	This was similar to a normal BSD release (i.e lots of applications,
	libraries, and kernel code), but UCB believed that they had only
	released the files not contaminated by AT&T code.

	In 1992, USL files suit against UCB, alleging that parts of Net2
	affected their intellectual property rights, and trade secrets.

	In 1994, the suit was dismissed in an out of court agreement between
	the two parties. Here is (part of) what was publically released:

        	The settlement restricts further use and distri-
	    bution of certain files in the Second Networking Release and
	    requires that certain files in 4.4 BSD-Lite include a USL
	    copyright notice.  In addition to providing several
	    enhancements, the new 4.4 BSD-Lite Release will replace most
	    of the restricted files and incorporates all the agreed-upon
	    modifications and notices.  Thus, 4.4 BSD-Lite will not
	    require a license from nor payment of royalties to USL.  The
	    University strongly recommends that 4.4 BSD-Lite be substi-
	    tuted for Net2.

        	Although it has denied the University's claims,
	    USL has also agreed to affix the University's copyright
	    notice to certain files distributed with future releases of
	    the UNIX system and to give credit to the University for
	    material derived from BSD releases which have been included
	    in the UNIX system.

Now things get thicker. It is known that both parties signed non-disclosure
on the actual agreement. This means that the actual list of `restricted'
Net2 files cannot be released by either party.

The effect that this has is to prevent anything in Net2: applications,
libraries, contributed programs, from being publically released, in case
it contains one of more of the `restricted' Net2 files. Because the list
of restricted files is unknown, we can't take the risk of using anything
in Net2.

>> prior to 4.4-Lite are _wholly_ tainted, and so their own code is now tainted.

The theory goes like this:
	+ One of my files/programs was released as part of Net2
	+ I cannot prove that it is free of AT&T code, because I don't
	  have the list of tainted files.
	+ All prior and subsequent releases of my files/programs are
	  thus tarred with the same uncertainty

> such copyrights appear, and a few of the sample  headers that show

The problem is that none of the Net2 files had AT&T/USL copyright notices
on them: UCB thought that they were taint-free. However, the agreement
marks some of these files as tainted. We just don't know which.

> See what you can find out from your colleagues, these developers.

The developers are just concerned: they don't know where they stand wrt
their code.  I've had some email back from Keith Bostic (from UCB), which
is attached.

Thanks again,
	Warren

> prior to 4.4-Lite are _wholly_ tainted, and so their own code is now tainted.

This isn't the case.

First, because Berkeley did not require contribution of copyright, any
software contributor retained all rights in their code that they had
before the contribution.  So, any contributor can do anything they want
with the code they contributed.  It would be impossible for any agreement
between AT&T and UC Berkeley to affect rights held by the original authors
in their original work.

That said, after the code was contributed, Berkeley could have mixed
proprietary code with the contributed code, in which case the files as
released by Berkeley could be tainted.  (It's pretty unlikely, but it's
possible.)

Reviewing the copyright of the file as released by Berkeley should resolve
that question.  If the copyright, as released by Berkeley, is clean, then
the file is clean.  There are a very, very few exceptions -- the 9 files
or so that Berkeley removed from the 4.4BSD-Lite, described in the letter
that Berkeley sent out subsequent to the AT&T settlement -- other than
for those files in that particular release, the copyright should settle
the question as to whether the BSD release of the file was tainted.

> without being sued? I am assuming that they can prove their code is
> untainted.

There are two forms of this question:

        1: Can I release foo.c, which I gave a copy of to Berkeley
           for inclusion in the BSD releases?

        2: Can I release foo.c, as found in a Berkeley release?

The answer to #1 is that the author's rights to the software are entirely
unaffected by whether or not the author contributed a copy to Berkeley
for inclusion in 4BSD.  If the software was "free" before contribution,
it's free after contribution, if it was "tainted" before contribution,
it's tainted after contribution.

The answer to #2 is as described above -- look at the copyright notice in
the BSD release, make sure it's not one of the 9 files from that single
release, and then make the decision.

--keith