From: gnu@hoptoad.uucp (John Gilmore)
Newsgroups: alt.suit.att-bsdi
Subject: Re: What happened with AT&T's copyright clearing procedure
Date: 31 Aug 92 08:00:52 GMT
Organization: Cygnus Support, Palo Alto

I was hoping someone would recall this:

> Return-Path: <ihnp4!attunix!gcss20!gcdwf>
> Date: Mon, 23 Mar 87 23:49:43 PST
> From: ihnp4!attunix!gcss20!gcdwf
> Message-Id: <8703240749.AA08028@hoptoad.uucp>
> Apparently-To: hoptoad!gnu
> 
> John Gilmore,
> 
> Listed below is the source code for uuslave that you electronically
> mailed to me on February 20, 1987. Our product management personnel
> have reviewed this code and have determined that it was not derived
> from source code from versions of our UNIX(r) operating system. If
> you have any further questions, please feel free to call me at
> 1-800-828-UNIX.
> 
> 
> David W. Frasure
> AT&T UNIX Software Licensing

Thank you, Mr. Spinellis (who posted this).

I and some friends proposed a "sift" project at Jan '87 Usenix.  The
idea was that some impartial Unix wizards would sift through Berkeley
Unix and decide which parts were Bell, and which parts were Berkeley,
and then get Berkeley and AT&T to verify that decision.  This was so
that all of us on the net could have the benefit of the parts that
Berkeley had written without any help from AT&T, and so there would be
an end to the problems that resulted from people mistakenly putting
AT&T code into programs such as CCA Emacs or MDBM.  (In those days
there were no copies of Berkeley networking code on uunet for anyone to
get.  It really does seem, now, like that was the Dark Ages!)  The
concept stuck in peoples' minds, but the project itself never really
happened.  I've enclosed the handout from that Usenix, at the bottom of
this note.

I initially got involved with AT&T in checking the license status
of software in a somewhat roundabout fashion.  As a contemporaneous
correspondence from me describes it:

Actually they first contacted me; I was working on uuslave and I got
some anonymous warnings (relayed through friends) that said AT&T thought
it was theirs and was going to "crack down" on whoever was working on
it.  I posted a challenge to the net, saying if they thought it was
theirs they'd better come public or lose whatever rights they might have
had in it.  Someone in AT&T forwarded it to the right people, who turned
out to be at the licensing dept at 828-UNIX, I sent them a copy, and
they gave it a clean bill of health.  They end up sending it to Summit
to be read over by the experts, which is why it's so slow -- I can
imagine your reaction to having to read a bunch of this stuff and say
whether it's part of Unix or not, rather than doing more development.
But there's way too much stuff that's not theirs which is hiding in the
shadows of "they might sue us because we don't really know who owns it"
and if AT&T really does want to control Unix, they'll have to bite the
bullet and say what Unix really is and isn't.

	(end of that excerpt.  Here is another with further history.)

The next two things I sent in were mdbm and rcs.  I sent mdbm on 25
March 1987, but it got lost inside AT&T because David Frasure, who was
handling it, retired.  I checked on May 29th and discovered they
had lost it; talked with Chuck Green who took over for Dave.  I also
mentioned RCS and they said "send it too, we will do them both".
I sent both to Mitzi Bond, who works for Chuck, on 1 June 1987,
in 9 shar files (one mdbm, 8 RCS).  I checked to make sure they
received it, and got email back from Mitzi on 13 June saying that they
got it all and were sending it to the developers.  I checked again and
got mail on 2 July saying that Charlie Thiel in Summit was still
reviewing the code but expected an answer by the end of next week.
On 13 July, Mitzi was on vacation for a week.  On 24 July I got the
final answer by email:

Return-Path: <ihnp4!attunix!gcss20!gcmdb>
Date: Fri, 24 Jul 87 22:47:47 PDT
From: ihnp4!attunix!gcss20!gcmdb
Message-Id: <8707250547.AA07117@hoptoad.uucp>
Apparently-To: hoptoad!gnu

To:  John Gilmore

From:  Mitzi Bond

Charlie Thiel at our UNIX\ software development group in Summit called me back
to say that his developers has examined the code that you sent.  Their results
were basically indecisive.  There was nothing in either set of code to
determine that it was solely AT&T's.  There was a lot of similarity but not
enough for AT&T to build a case to say that this was strictly AT&T code
and its use in both instances is a violation of the copyright of our
software.

Charlie also says that it is the duty of the University of Maryland to protect
the software and their lies the responsibility in that particular instance.

I apologize for taking so long to respond.  I talked with Charlie on Monday
when I returned, and again today for the final results, which don't seem to
be as conclusive as we would have hoped.

Thank you for your patience.

-----------

	(end of 2nd excerpt of old correspondence.)

Common wisdom at the time was that MDBM had some AT&T in it, and that
RCS was clean.  AT&T didn't distinguish between them in its response,
which was a bad sign.

Rich $alz was able to confirm with AT&T that they did not consider
sendmail to be AT&T-licensed software.  However, AT&T shut down the
license-checking service soon after this, after someone submitted the
C-shell for checking.

I was told by people who pretend to be lawyers that it makes it very
tough to prosecute someone for infringement of copyright or trade
secrets, if they came to you first and said "Is this a copyrighted program?
Is this a trade secret?".  If you refuse to answer, you are in effect
an accessory to the crime (if there is one), because the infringing party
gave you the opportunity to stop them -- begged you to let them know whether
it was right or wrong -- and you declined.

I think (personal opinion) that AT&T decided it was better to risk
losing the big court case over this (refusal to help potential
infringers check if they were infringing) than to have to certify, piece
by piece, that indeed major chunks of what the world thinks of as "Unix"
did not actually infringe AT&T's rights.

We're now coming up on the "big court case" and it will be interesting
indeed.  I hope a lot of New Jersey area residents are calling the
Federal District Court to find out when USL v. BSDI hearings are, and
showing up at them.  Courtroom scenes are fun to watch -- especially
when you know more about the technical issues than either the lawyers
or the judge.  It becomes obvious which side is there for bluster and
which side is there to inject some reality.  If you go, please take
notes about the best parts, and post them to the net when you get back.

	John Gilmore


The January 1987 Usenix flyer:

From:  John Gilmore, Laura Creighton, Erik Fair, Rob Warnock
To: Wizards of the Unix Community
Subject: Sifting through Berkeley software for unlicensed nuggets

An idea for increasing the availability of Unix-related software came
to several of us simultaneously.

Berkeley has produced or distributed a lot of software that is not
derived from Bell sources, but which is useful in its own right.  For
example, much of their networking code is not based on Bell work.  This
networking code could be ported to micros, minis, or mainframes that
run operating systems other than Unix.  The release of such code to the
general public would help the public, giving them the benefit of years
of networking experience, tuning for a variety of environments, and
hundreds of millions of hours of production operation.

Many Berkeley user programs could give good service to Minix, MSDOS,
Atari, Amiga, or binary System V licensed users.

Pauline Schwartz at Berkeley, who is responsible for licensing issues,
tells us that AT&T requires Berkeley to distribute their software only
to sites with Unix licenses.  We are investigating to see if AT&T is
also under this impression.  Kirk McKusick and Keith Bostic, and
probably many others at Berkeley, are in favor of wider distribution of
their work, if this constraint can be removed.  In order for the
non-licensed parts of the software to be released, technical decisions
must be made as to whether a given piece of software is actually
derived from AT&T licensed sources or not.  Berkeley doesn't have the
manpower to sift through every module and figure out its status, though
they would like to see this done.

We are trying to form a low-key committee of Unix wizards for the
purpose of certifying that individual source files do not contain any
AT&T licensed code.  Of course reviewers would have to have Unix source
licenses and some experience in the code they review.  A knowledge of
the history of the code is particularly valuable.  We would like to
find volunteers from Research, System V, and Berkeley, as well as the
usual motley crew of interested parties.  We don't expect that the
committee would actually meet in person other than at Usenixes; most of
the business would be transacted by email as usual.

Our strawman view of the process is for a coordinator to make a listing
of all the file names on the 4.3BSD tape, and mark each file as "clean"
(no licensed software), "dirty" (definitely contains parts of AT&T
Unix), or "murky" (further study needed).  Initially all files are
murky.  Individuals who are interested in specific source files can
investigate them and report back to the coordinator that they are
clean, dirty, or murky after further study.  When some number of source
files have been classified, we would write a letter to AT&T and
Berkeley, listing our results and requesting that they tell us whether
or not they agree with our classification.  As further files are
classified, and as responses come back from Berkeley and AT&T, the list
could converge with each file classified "clean" or "dirty" as we reach
technical consensus on the module's history and current status.

Berkeley has already made provisions for redistributable, unlicensed
software on Berkeley release tapes.  The 4.3 license's Appendix A lists
all files on the tape to which the license applies.  There are a few
hundred files in the user contributed part of the tape which the
license does NOT apply to -- things like netnews, patch, B, etc.
Berkeley can use our work as a guideline for "unlicensing" more files
in future releases.

Having a list of modules classified "dirty" is also useful.  Such a list
might have prevented the mishaps wherein AT&T proprietary code was released
in early versions of Jove and CCA Emacs, and to DECUS tapes.

And of course, if the weight of technical opinion is that a module is
free of AT&T code, and if Berkeley and other copyright holders let it
be known that redistribution of such modules is OK as long as the
copyright notice is retained, people can choose to use pieces of code
before the formalities are finalized.  There is a slight risk of a
complaint or suit, if a classification is in error; more prudent
parties can wait for AT&T and Berkeley to verify our informal
classifications.

We're interested in your reaction to the general idea, and in what files
you would be interested in reviewing.  We can be reached at:

	hoptoad!sifters

	John Gilmore, interim sift coordinator
-- 
John Gilmore   {sun,uunet,pyramid}!hoptoad!gnu   gnu@toad.com   gnu@cygnus.com
"It isn't given to us to know those rare moments when people
 are wide open and the lightest touch can wither or heal."
Newsgroups: alt.suit.att-bsdi