From: terry@cs.weber.edu (A Wizard of Earth C)
Subject: Re: BSDI lawsuit
Keywords: copyright, notice
Organization: Weber State University  (Ogden, UT)
Distribution: inet
Date: Tue, 29 Dec 92 22:39:19 GMT

In article <1992Dec29.180341.29581@netcom.com> nagle@netcom.com (John Nagle) writes:
>hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes:
>>In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes:
>>>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes:
>>>>So USL is claiming copyright violations.
>>>
>>>The 32V code that the university started out from was not copyrighted.
>>>(No explicit copyright notice, and it was done before the US said that
>>>things were automatically copyrighted.)
>>>So they would probably lose a copyright charge.
>
>       Original AT&T 32V tapes bore a copyright sticker on the reel.
>When I first installed 4.1 BSD UNIX at Ford Aerospace, we had to licence
>32V from AT&T.  This was a big undertaking in 1980 or thereabouts, requiring
>lawyers on both sides to negotiate an agreement.

The 32V tapes at UCB were pre 1978, weren't they?  It make sense that
anything post 01 Jan 78 would have a copyright on it, but prior to
that, copyright was an indicator of publication.  Anyone remember what
the pre 78 tapes had on them?

>       So there were indeed copyright notices at the point one dealt
>directly with AT&T for UNIX 32V.

Post 78, yes.

>       But that's not the issue. 32V was a simple port of the PDP-11
>version of UNIX.  Berkeley did a major overhaul on the
>kernel, eventually rewriting it completely.  All the networking code
>is pure Berkeley.  Virtual memory in UNIX was a Berkeley innovation.
>Sockets, psuedoteletypes, modern signal handing, "vi", "termcap", 
>and job control were all Berkeley innovations.  Berkeley replaced the
>abysmal scheduler that came from AT&T, added decent memory management,
>and generally replaced most of the kernel algorithms.  But they did this
>bit-by-bit over a decade, not in a "clean room" environment from the
>specs.  (Clean room cloning hadn't been invented in 1980, remember.
>The IBM PC only dates from 1980, strange as it seems now.)
>Thus, they have copyright problems.  If you replace everything, is
>it still a "derivative work"?

If I buy a 65 Ford Mustang, and replace all the parts with parts from
Checker auto and similar stores, is it still a 65 Ford Mustang?

If not, is it still a Ford Mustang (though not necessarily a 65)?

Same questions for a 65 Ford Mustang built from scratch with no Ford
parts?

At what point does it quit being a 65 Ford Mustang and become just a
Ford Mustang?

At what point does it quit being a Ford Mustang and become just a Mustang?

At what point is it not a Mustang, but just some car that looks like one?

Ok, I buy a 92 Ford Mustang, and replace half the parts -- Does Ford
still have to honor the warranty?

I replace all the parts -- same question?

I build one from scratch with no Ford parts -- does it have a warranty?  8-).

OK, I use Ford parts -- now does it have a warranty?


These are basically the analogous questions for real property; there are
real, legally definitive answers for these questions with regard to
real property.

For real property, the "clean room" test is meaningless. IBB (Bricklin)
used the Mustang chassis for their car; it wasn't a Mustang... yet the
car was definitely *not* a "clean room" design.

To extend the attributes of real property to intellectual property --
which appears to be what at least part of the suit is about -- would
grant, effectively, patent-type rights to the owner of a copyright on
the intellectual property.  This is without the corresponding term
limitations normally associated with patents, since copyrights are
effective until 50 years following the death of the author.

This is a double edged sword, since if intellectual property is to be
treated as real property, other law which is applicable to real property
can be brought to bear on intellectual property.  In particular, this
would leave USL open to counterclaim on the basis of adverse posession,
a real property concept, wherein UCB can be said to have acquired a real
interest in USL's property on the basis of USL having not done anything
about it for too long (this is generally between 6 months and two years,
and is dependent on local statutes).  Thus a prescriptive lien.

Whether replacing everything still constitutes a derivitive work will
depend on whether the trade secrets are considered the real property
of USL.  Current decisions regarding "clean room" coding practices
and their effect on whether a work is a deriviation or not will
probably figure big in deciding this (and, I think, simply serve to
cloud the real issues).

So there is probably no clear answer to your question of what constitutes
a derivitive work; this case will probably set several precedents if only
because of that.


					Terry Lambert
					terry@icarus.weber.edu
---
Any opinions in this posting are my own and not those of my present
or previous employers.
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