USL v. BSDi
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USL v. BSDi was a lawsuit brought in the United States in 1992 by Unix System Laboratories against Berkeley Software Design, Inc and the Regents of the University of California over intellectual property related to UNIX. The case was settled out of court in 1993 after the judge expressed doubt in the validity of USL's intellectual property, with Novell (who by that time had bought USL) and BSDi agreeing not to litigate further over the Berkeley Software Distribution (BSD), which would later develop into a range of BSD distributions, each tuned to its own specific audience's strengths and markets.
The suit has its roots at the Computer Systems Research Group (CSRG) at the University of California, Berkeley, which had a license for the source code of UNIX from AT&T's Bell Labs. Students doing operating systems research at the CSRG modified and extended UNIX, and the CSRG made several releases of the modified operating system beginning in 1978, with AT&T's blessing. Because this Berkeley Software Distribution (BSD) contained copyrighted AT&T UNIX source code it was only available to organizations with a source code license for UNIX from AT&T.
Students and faculty at the CSRG audited the software code for the TCP/IP stack, removing all the AT&T intellectual property, and released it to the general public in 1988 as NET-1 under the BSD license. When it became apparent that the Berkeley CSRG would soon close, students and faculty at the CSRG began an effort to remove all the remaining AT&T code from the BSD and replace it with their own. This effort resulted in the public release of NET-2 in 1991, again under the BSD license. NET-2 contained enough code for a nearly complete UNIX-like system, which the CSRG believed contained no AT&T IP.
Berkeley Software Design (BSDi) obtained the source for NET-2, filled in the missing pieces, and ported it to the Intel i386 computer architecture. BSDi then sold the resulting BSD/386 operating system, which could be ordered through 1-800-ITS-UNIX. This drew the ire of AT&T, which did not agree with BSDi's claim that BSD/386 was free of AT&T IP. AT&T's Unix System Laboratories subsidiary filed suit against BSDi in New Jersey in April 1990, a suit that was later amended to include The Regents of the University of California.
In the lawsuit, Unix System Laboratories alleged that:
- The Regents of the University of California, by releasing NET-2 "based upon, substantially copied from, or derived from proprietary UNIX", had
- BSDi had known UC Berkeley had no right to release the NET-2 source code (and had in fact induced the University into releasing the code), so by distributing code based on it had knowingly violated USL's copyright.
- UC Berkeley's claim in the announcement of the release of NET-2 that it "requires no previous license [...] from AT&T" was false, and an illegal deceptive trade practice.
- BSDi's claim in their advertising and software license that BSD/386 and the NET-2 code it was derived from "contained no AT&T licensed code" was false, so BSDi was guilty of false advertising and deceptive trade practices.
- BSDi's 1-800-ITS-UNIX telephone number violated USL's trademark on UNIX.
On these grounds, USL asked the court for a preliminary injunction that would bar BSDi and UC Berkeley from distributing the NET-2 software until the outcome of the case was known.
Many of the trial documents of this case are sealed or unavailable, including the majority of those submitted by USL. Some of those that are available have had portions removed as a term of the case settlement. However, in November 2004, a copy of the USL v. BSDi settlement agreement became available to the public: see Terms of the settlement.
Since the allegedly infringing software had been released to the public by the UC Berkeley, most of the case would hinge on events there. Because UC Berkeley was not originally a party to the suit, the University made its arguments against an injunction in a series of amicus briefs.
The University submitted the licenses UC Berkeley had from AT&T for UNIX, which specifically stated that the copyright on the Berkeley software built upon the 32V version of UNIX belonged to the University. They went on to claim that AT&T had confirmed this by allowing the free redistribution of NET-1, as well as allowing the distribution of the later BSDs, in which specific source code files were marked as containing no AT&T code, and were freely redistributable. Under US law, allowing this distribution was considered abandoning the copyright, so that code could not be considered a copyrighted part of UNIX.
Assuming this was true, the University still needed to show that NET-2 did not contain any validly copyrighted AT&T UNIX code. One claim the University made was that USL's copyright in the 32V version of UNIX that NET/2 was based on was invalid. At the time 32V was released, US copyright law did not automatically presume that a released work was copyrighted. In order to claim copyright, it was necessary to include copyright notices in the work—which the 32V source code did not have—or to register the work with the government. AT&T did not register the copyright on 32V UNIX until 1992, and so the grace period for registering an already-released work had expired.
The University also claimed that similar lines of source code (which were presented during discovery) did not infringe on USL's copyright because they had become public domain by the actions of AT&T: AT&T had promoted UNIX as a standard, licensing it to universities and allowing UNIX source code to be published in textbooks. The University submitted briefs from the UC Berkeley students and staff, explaining how they had audited the code, looking for freely available copies of the source code and methods. When they could find one, they said, they removed the code and rewrote it using publicly known techniques—and so any remaining similarities existed because AT&T had effectively abandoned the copyright to them.
The University also argued that the source code did not infringe because it was necessary for program compatibility—that certain code could be written only one way and still be compatible with the standards set by organizations like POSIX (which AT&T supported), and so was no longer a "creative" work that could receive copyright protection under US law.
Even if the code were validly copyrighted AT&T UNIX code, the University claimed, that would not be a copyright violation because it made up such a small fraction of the whole of NET-2 that it was not legally a derived work.
The University also filed a separate lawsuit against USL for violation of USL's license to use the BSD code written at UC Berkeley. Unlike most licensees of the BSD code, USL's corporate predecessor AT&T had entered into an express written license with the University for the BSD software, requiring it to abide by terms similar to those required by the license statement present in each BSD source file. In particular, the license required AT&T to retain the University's copyright statements in the code and documentation of any redistribution of the BSD code.
As the University's complaint noted, AT&T's and USL's System V releases prior to the lawsuit (such as System V Release 4) did not include the required copyright notices and authorship acknowledgments and thus each copy shipped constituted a violation of the University's copyright and the license executed between the University and AT&T.
The University sought attorneys' fees in all the related actions, a declaration by the court that the University had the right to distribute 32V, a comprehensive advertising campaign by USL and AT&T to create industry awareness of the proportion of SVR4 code which had actually originated in the University's BSD software (by the University's own account, possibly more than had actually been written by AT&T itself), and an injunction preventing AT&T, USL, or their agents from making false claims about the provenance of the University's code. The University did not directly seek monetary damages for the distribution of its work in violation of its license nor did it ask, directly, for an order enjoining further distribution of USL's commercial products. However, the University asked the court to require that USL destroy all copies of the BSD software in its possession and cease using or distributing the University's code except in compliance with the copyright and acknowledgement requirements of the original license and the other terms of the relief requested from the Court.
If granted, this relief could have required USL to terminate many existing licenses and destroy a huge number of copies of the BSD code, potentially including copies used in its owner AT&T's own global telephone network, until such time as it was able to comply with the University's license requirements, rendering any victory in the original case Pyrrhic at best.
Terms of the settlement
For many years, the details of the settlement had been kept secret between the parties, with the general public consensus being that USL and BSDi had mutually agreed not to litigate further over the software that would later be developed into the free BSDs — an agreement reached after the judge denied the injunction against BSDi, and after the UNIX IP had been purchased from AT&T by Novell.
In November 2004, a copy of the USL v. BSDi settlement agreement was posted to the Groklaw website, obtained from The Regents of the University of California's Office of the General Counsel under the State of California Public Records Law. This crucial link in UNIX legal history is now public.
The salient points were:
- 4.4BSD-lite to be released containing no disputed files. University to encourage licensees to switch from Net-2.
- University to cease distribution of certain files.
- USL to grant three months' grace period to users of disputed files.
- Certain files distributed by University to carry USL copyright notice.
- Certain files distributed by USL to carry University copyright notices.
- USL to permit free distribution of certain files.
- University not to actively assist in legal attempts to challenge USL's rights to certain files.
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