From: terry@cs.weber.edu (A Wizard of Earth C)
Subject: Re: 32/V licensing
Organization: Weber State University  (Ogden, UT)
Date: Mon, 7 Sep 92 10:20:51 GMT

In article <KANDALL.92Sep7163543@globalize.nsg.sgi.com> kandall@nsg.sgi.com (Michael Kandall) writes:
>>>>>> On Fri, 4 Sep 1992 23:54:52 GMT, bzs@ussr.std.com (Barry Shein) said:
>
>Barry> That's pretty close. AT&T, at the time the contract was originally
>Barry> agreed to, was forbidden by law from engaging in commercial sale of
>Barry> the software. I would consider a change in that a change in the
>Barry> original assumption of the contract.
>
>But why is sale of the software, or previous restrictions on selling
>the software, relevant?  The *main claim* against UCB has to do with
>*unrestricted distribution*, *not sale*, of the software.  All
>UCB wants to do is
>
>	1) to support their claim that NET/2 is not derivative
>		of UNIX
>	2) distribute NET/2 freely
>
>Selling software is not at the core of the claim, and is extrememly
>tangential to the case.  Selling software only comes into play against
>_BSDI_ who has "improperly" (t.b.d.) obtained UNIX and started selling
>it without "proper" license.  And this is strictly a result of UCB's
>distribution practices.  (Then, there is the conspiracy/collusion
>part of the claim that BSDI == UCB.)
>
>AT&T's acquired ability to sell UNIX for-profit has nothing to do with
>the question of UCB's ability to distribute NET/2.  If UCB were
>contesting the right to *sell* NET/2, all your analogies would make
>sense to me.   

	I think that what Barry is saying (or implying, at any rate) is
not that *selling software* is "at the core of the claim", but rather
that is is the cause of action for the claim... the premise being that
AT&T would not have moved against UCB unless they felt it was necessary
to support their claim against BSDI.  Clearly BSDI could otherwise have
the claim dismissed on constitutional grounds: "equal protection under
the law".

	I believe from the wording of the license, as posted in this group,
that UCB is, indeed, prohibited from selling the code.  However, there is
an obvious loophole in the license, in that it neither prohibits UCB from
giving derivitive works to others, *nor does it bind the recipients from
selling the code*.  This is because there does not seem to be a clear
assignation of ownership of derivitive works to AT&T, and AT&T was
prohibited at the time (81?) from the software-for-profit business.  This
was an implied protection for UCB, and is probably binding for the contract
at the time (I suppose one could speculate that the inclusion by AT&T of
BSD derived code in SVR4 violates the spirit of Judge Greenes ruling to
this effect, and perhaps SVR4 is illegal, since their calim to ownership
in the BSD code relies on a premise of "illegal investment" in the software
industry.  This, since AT&T is expecting to make a profit from it's actions
in the software industry at a time when actions-for-profit in this venue
was illegal).

	Unrestricted distribution is not prohibited, from my reading of the
license materials posted so far ...only distribution for profit.  This is
tantamount to granting publishing rights to a novel, rather than first
North american publishing rights.  Thus such a granting is automatically
in perpetuity.  This is hilarious because, if true, BSD may in fact have
not-for-profit distribution rights on SVR4, if they had a properly worded
maintentnace agreement.

	The claim against BSDI, however, can be strengthened if UCB has
engaged in "restricted distribution" instead of "unrestricted distribution"
of derivitive code, since this *would* be against the terms of the
licensing published here so far.  In other words, if BSDI had exclusive
eary access to the code, and this is proven, UCB is liable under the
terms of it's license.

	All of this is a far more interesting tilt than AT&T's obviously
farcical attempt to either apply copyright to UNIX as a whole (the
equivalent of a "look-and-feel" software patent) or to apply trade secret
protection to, in effect, give a patent on one or more algorithms (also
impossible under current patent law), and thus indemnify these ideas as
case law.  Both of these, I feel, will fail fairly quickly in court.


					Terry Lambert
					terry_lambert@gateway.novell.com
					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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                                                       terry@icarus.weber.edu
 "I have an 8 user poetic license" - me
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