From: terry@npd.Novell.COM (Terry Lambert)
Newsgroups: comp.unix.bsd
Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!!
Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD
Date: 22 Jul 92 21:29:03 GMT
Organization: Novell NPD -- Sandy, UT

Newsgroups: comp.unix.bsd
Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!!
Summary: 
Expires: 
Followup-To: 
Distribution: 
Organization: Novell NPD -- Sandy, UT
Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD

In article <mcuddy.711795634@fensende> mcuddy@fensende.Rational.COM (Mike Cuddy) writes:
>jjsmith@nyx.cs.du.edu (Jonathan J. Smith) writes:
>
>
>>Hrm well to the uneducated in legalieze (me) this sounds just a tad unlikely,
>>First of I believe that AT&T has to PROVE that said things actually were
>>based on derived from intellectual property of AT&T.  I also believe that
>>burden of proof lies with AT&T.  To me it sounds a shade unlikely that they
>>could possibly prove that , I COULD be totaly wrong here however.  Just 
>>doubting that is will happen i guess, sounds way to unreasonable.
>
>Heh, you forget that USL/ATT have lots of money for lawyers.  How many 5 to 10
>thousand dollar lawsuits can BSDI withstand?  5?  10?  That's a lot of money
>for a startup, however, it's piss in a bucket for ATT/USL. *SIGH*   Do not
>forget the principles this country is decaying under:  Only the financially 
>advantaged win :-(.

I would think that there are several issues involved here:

1)	Trademark infringement

Is the University of California, Berkeley, entitled to use the AT&T
trademark because it is an AT&T licensee?  If so, the trademark is
defensible on the basis that it is held by AT&T and licensed.  The suit
may be pressed on grounds that use of the "1-800-ITS-UNIX" appearing in
the BSDI materials constituted use of the trademark without footnoting
the fact that "UNIX is a registered trademark of AT&T and Bell
Laboratories" for that particular use.  Even if the trademark is clearly
identified due to other use in the materials, this is a nit that AT&T is
entitled to pick.  Under what conditions would this not be true?  The
first is that if UCB is not entitled to use of the trademark, a case can
be made that UCB's longstanding use constitutes "common usage", and thus
"UNIX" is no longer a trademark.  The second case is if the initial use
of the trademark is footnoted.  This implies inclusion of all subsequent
references in the materials.


2)	Copyright infringement

I do not think it is possible to pursue a case on this basis; this is due
in large part to the nature of the developement effort that took place.
One place where this might fall down would be infringement on the basis
of "look and feel".  I think that it would be possible to argue that the
"look and feel" of the AT&T OS derives in large part from UCB code that is
not proprietary to AT&T.  The problem with this approach, as opposed to
simple copyright violation by inclusion of AT&T dervied source, is that
the burden of proof for "look and feel" would be easily satisfied, and
that it would then be up to BSDI (or UCB) to prove that the "look and feel"
is derivitive of UCB code.  This could be rather expensive.  I think AT&T's
failure to bring suit against Andy Tannenbaum rules this out.


3)	Trade secret infringement

I do not believe this is defensible at all.  First, there has not been
sufficient effort by AT&T to protect their trade secrets.  Allowing the
Bachman book, among many, many other titles to continue to be published,
each of which disclose in large measure AT&T's "trade secrets".  I think
it would be difficult for AT&T to find a particular "trade secret" to
litigate over; there are too many counter examples.  This could still be
effective, as it will be very expensive coming up with counter examples.


All of these issues fail from the standpoint of BSDI's willingness to drag
UCB, CSRG, and the Jolitz's into the matter.  Using any of these as an
example, it would be trivial to provide proof of "adverse use".  This would
have the effect of placing litigation issues brought by AT&T into the
public domain, thereby restricting.  Obviously, UCB and CSRG are much
better targets than the Jolitz's, in this case, as any suits brought
against the Jolitz's for their release of code would be considered to be
contemporaries of the suits against BSDI, and therefore would not be
binding on the court (this has yet to reach appellate level).

I think it is possible to exempt UCB, CSRG, and the Jolitz's from this by
declaration that their disclosure constitutes "educational use" within the
terms of the initial license to UCB, and still go on to prosecute BSDI on
the basis of violation of the terms of distribution from UCB, as set forth
in the initial license.  I have not read the AT&T to UCB license, but I
suspect that the terms were not written to cover this eventuality; after
all, there was not a commercial product based on AT&T's intellectual property
at the time of UCB's being granted a license.  If the AT&T/UCB agreement
could be cast in this light, it's definitely the tack I would use to press
the suit on AT&T's behalf.


*** prediction alert *** prediction alert *** prediction alert ***

I think that AT&T will win; not on the merits of reality, but on the merits
of their arguments.  It will be difficult, without educating the judge to
the point of a CS degree, to draw the distinctions necessary to prove
non-infringement by BSDI.  It certainly *looks* like BSDI is infringing
to a layman, and that's what the judge will be.  I seriously doubt that
the judge will be willing to set the precedent of applying property law
to intellectual property (even though I think it applicable in this way)
by making a decision for "adverse use", a [physical] property law concept.
This will certainly bode ill for all of us "contaminated" by knowledge
of "AT&T concepts" drummed into us in college.


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