From: terry@cs.weber.edu (A Wizard of Earth C)
Subject: Re: AT&T/USL CD-ROM Review Process
Organization: Weber State University  (Ogden, UT)
Date: Mon, 14 Dec 92 16:59:13 GMT

In article <1992Dec13.183240.23944@blaze.cs.jhu.edu> bogstad@gauss.cs.jhu.edu (Bill Bogstad) writes:
>In article <1992Dec13.165418.5021@sbcs.sunysb.edu> sayre@sbstaff2.cs.sunysb.edu (Johannes Sayre) writes:
>>In article <1992Dec13.021307.24664@lgc.com> danson@lgc.com (Doug Anson) writes:
>>>In article <1ge0aaINNm4d@neuro.usc.edu>, merlin@neuro.usc.edu (merlin) writes:
>>
>>[...]
>>
>>>... It seems to me that this action would automatically involve the 386bsd
>>>users in the current USL/BSDI lawsuit 
>>
>>... which would suit some people just fine.  The success of UNIX, and the
>>particular way in which it succeeded, has made people in all sorts of fields 
>>and organizations insecure and/or resentful.  Bad advice will be generally
>>rampant in such times.
>
>	I'ld like to know why people think that USL won't sue the Jolitzes
>if they win against BSDI.  Is there something magically wrong that BSDI did
>that the Jolitzes didn't.  (Okay, BSDI charges money.)  Still, I'ld like
>386BSD and the other freeware Unix clones to succeed to the extent that I
>can purchase support for them.  I'm quite happy to hack on my own system for
>fun, but when I go to work it would be nice to be able to use the same
>system.  Until I can safely trade some of my employers money for less
>hacking on the company time clock, I won't be able to do this.  I can
>understand that this might not be the primary goal of either Jolitz (386BSD)
>or Linus (Linux); but I would hope that neither one of them would mind their
>software being used for something besides hacking.  I predict that if it
>appears even remotely that 386BSD or Linux are starting to encroach on the
>commercial Unix market; USL will take any and all legal steps possible to
>stop their further distribution.

First off, if USL wins the BSDI suit, there won't be any need to go after
either Linux or 386BSD.  If USL does win, I predict a motion for summary
judgement against UCB, and that will pretty much cut off 386BSD at it's
roots.  This would be rather unfortunate, at least from my point of view,
and probably, in the long run, USL's; certainly USL is aware of the benefits
it has reaped from University level research.  The question remains as to
whether they are willing to trade fututre benefits for control of the
market; the answer may suprise us.

Second, Linux is arguably more like SVR3 (and by extension SVR4) than
386BSD; this, I believe, puts it in more danger of censure.  The thing
that has protected Linux so far is its international (non-US) origin.
This is not something USL has to worry about forever, it's simply an
inconvenience to prosecution, not a barrier.  If a judgement were given
regarding copyright infringement by Linux against USL's materials, it
wouldn't matter that the judgement occurred in the US; Linus' government
would be forced by the Berne convention to uphold the judgement.

I think a company pressing a CDROM in the US would provide a convenient
(and less expensive for USL) target of prosecution for such infringment,
and thus perhaps provide a vehicle for establishing an anti-Linux
judgement.  A CDROM publisher is a hell of a lot more likely to plead
_nolo_contendre_ (no contest) in return for limited damage claims.

Admittedly, we are already at this point with the release of 386BSD on
CDROM, and it's subsequent distribution at InterOp.  The issue that
protects this from prosecution is probably the fact that, since no
money was exchanged, it's possible for the publisher to claim that the
distribution was done under "first use" law -- thus invalidating the
USL claim to damages regardless of intent or infringement.

I think the point that BSDI has charged for the code is perhaps USL's
strongest argument towards the required preponderance of evidence that
they have been damaged financially: 51% guilty is 100% guilty in
civil suits.  I don't think this is mitigated by the fact that McDonalds
could claim to be financially damaged by Burger King in precisely the
same way.

In any case, it is probably bad politics to provoke a response from
USL prior to a decision in the current suit, and a commercial CDROM of
386BSD or Linux seems the surest means of provocation.  If USL wins
it's suit, it's 100% that you will owe them damages.  If a summary
judgement is rendered (by a "no contest" plea by the publisher), you
will only add to the case against BSDI.  Better to wait and see.


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