From: burley@geech.gnu.ai.mit.edu (Craig Burley)
Newsgroups: gnu.misc.discuss
Subject: Re: AT&T sues BSDI
Date: 24 Jul 92 17:59:47 GMT
	<MIB.92Jul21111729@geech.gnu.ai.mit.edu>
	<1992Jul22.155655.1596@wobble.uucp>
	<BRUNER.92Jul22161235@sp15.csrd.uiuc.edu>
Distribution: na
Organization: Free Software Foundation 545 Tech Square Cambridge, MA 02139
In-reply-to: bruner@sp15.csrd.uiuc.edu's message of 22 Jul 92 21:12:35 GMT

In article <BRUNER.92Jul22161235@sp15.csrd.uiuc.edu> bruner@sp15.csrd.uiuc.edu (John Bruner) writes:

   In this particular case, an advertisement that states "it's UNIX" in
   describing BSDI's telephone number is clearly a violation of USL's
   trademark.  After reading the available material, this seems to me a
   very clear cut case of infringement.  (USL's other claims are
   considerably more tenuous.)

Yes, I haven't seen the ad, but I'm surprised they blew this!  Seems to
me that most people have known enough to include (TM) or whatever with
the term "UNIX".  AT&T has a legitimate gripe here, apparently, with the
trademark infringement -- though I don't see why it should be an _expensive_
one, since I suspect that whatever publications carried the ad also carried
a number of other references to UNIX with the necessary TM or (R), so little
damage probably was done.

I'm much more concerned about the other USL claims.  If being capable of
looking at AT&T code is enough to land oneself in court for making available
an early release of a UNIX clone on 386s and 486s, it seems very likely to
me that when GNU Hurd comes out and gets to where it can run on 386s, 486s,
68030s, 68040s, and many more machines (and hence likely be more competitive
with AT&T than BSD386), AT&T will have even more reason to sue organizations
like the FSF and any of us who contribute to the effort, and with even less
excuse than they're using with 386.  I hope I'm wrong.

Right now, I'm using Linux.  I gather that some Linux development has been
done by porting things over from BSD and, in particular, the 386BSD OS
(which is free, but I think shares a lot of code with BSD386).  Maybe I'm
confusing too many things or worrying too much, but if BSDI can't, according
to AT&T (USL), provide their free code without requiring licenses and is
liable for license fees for all free copies estimated to be in circulation
(something BSDI can't control), then surely us Linuxers have the same problem
if we've learned methods and concepts by looking at BSDI code.

So, if Linux is sufficiently successful for USL to notice, then we have the
very real threat of AT&T/USL suing _individuals_ for contributing AT&T's
methods and concepts to Linux and permitting the resulting source code to
be freely distributable, thus also being liable, potentially, for paying
licensing fees for every copy of Linux estimated to be in use.  This seems
very bad, since those individuals are doing the development as volunteers
and have no possible defense against such a threat (except maybe living
in Finland, as the original author does, or whatever place is out of the
reach of the Intellectual Property Police?).

Are these concerns overblown?  If so, is it because there's no legal ground
and no court actions would be brought, or because Linux won't be successful
enough for AT&T/USL to notice?  Keep in mind that, for some of us volunteers,
even _one_ lawsuit -- just the cost of hiring a lawyer and defending oneself
against a civil suit against any corporation -- could be enough to bring on
financial ruin.  I believe there's no such thing as a public defender in
civil cases.  (How was the guy who wrote and released the free RSA
implementation threatened by the patent holder, since he was an individual
doing it for free?  I'd love to know this.  He was lucky -- he, and everyone
else, basically knew from the outset that his program implemented patented
algorithms.  I'm about to release far more code in GNU Fortran and have no
idea or way of finding out whether my code uses patented algorithms...it might
be in circulation for years before I get sued, except that by handing copyright
over to the FSF I presume I wouldn't be, but the FSF would.  Anyway, after
being in circulation a few years, being willing to stop distributing the
implementation of the patented algorithm is not likely to satisfy the holder
of the patent, who will probably just want lots of money -- and get it, in
today's legal climate.)

Kind of sad, isn't it, the idea that volunteers benefitting the community
by writing free software are at risk of being finanically ruined by lawsuits
instigated by mammoth corporations?  I hope there's no such risk, but according
to what I've seen in the writings of people who are in favor of software
patents and other such so-called "intellectual property" law, such a risk
is actually "desirable" and should be swallowed by us volunteers.  (And people
wonder why volunteerism seems to be on the decline!)
--

James Craig Burley, Software Craftsperson    burley@gnu.ai.mit.edu
Member of the League for Programming Freedom (LPF)
Newsgroups: gnu.misc.discuss