From: terry@cs.weber.edu (A Wizard of Earth C)
Subject: Re: Novell buys Unix Systems Laboratory
Organization: Weber State University  (Ogden, UT)
Distribution: alt
Date: Sat, 26 Dec 92 22:38:06 GMT

In article <BZS.92Dec24225037@world.std.com> bzs@world.std.com (Barry Shein) writes:
>
>From: terry@cs.weber.edu (A Wizard of Earth C)
>>A judgement against UCB would effectively be a defacto judgement against
>>all users of the Net/2 code -- BSD/386, 386BSD, etc.  The real question is
>>why go after BSDI at all, if their only offense was use of the UCB code?
>>The only conceivable answer is that their alleged civil offenses must
>>include some infringement that the alleged UCB infringement does not.
>>This may not be something shared by either 386BSD or Linux.
>
>Ok, since you don't get it I'll spell it out for you: USL originally
>did not want to be seen as suing a university, it's horrible PR and
>they knew it, particularly in a situation like this where so many
>people credit so much to UCB/BSD/CSRG.
>
>So instead USL sued BSDI hoping that would do it. This turned out
>(procedurally) to be a terrible error, so they then added UCB to the
>suit, the only other choice at that point was dropping the suit
>entirely.
>
>Isn't that obvious? I thought it was.

Then why not drop the expensive litigation against BSDI?  This doesn't wash.
At the very least, rather than actively pursuing the BSDI case, they would
have allowed a much longer continuance (instead of arguing over the date of
the 25 Jan 93 response to the last motion filed) In order to get their
judgement.

>>|> Why hasn't USL sued the Jolitzes?  It is a reasonable strategy to pick
>>|> one target first, establish your case, then go on to the others.
>>|> Soderholm proved this works quite well with his token-ring suit against
>>|> IBM.
>>
>>I don't feel this is true; if nothing else, the Jolitzes are an easier
>>(fiscally) target, and would prove a valuable case (if successful) in
>>establishing the required preponderance of evidence against BSDI (who are
>>fiscally capable of a much larger defense).
>
>No, if your opponent crumples fast due to lack of financial ability to
>put up any fight you have no precedent, basically. You don't really
>think the court and precedent system is *that* stupid, do you? The
>form of the judgement would clearly mark that to anyone considering
>the precedent later and it would be discarded immediately. If this
>wasn't true we'd all be in big trouble, think of the broader
>implications of what you're claiming.

Whether the precedent is binding is based on whether or not the judment was
in the same venue or not; I'm well aware that binding case law can not be
generated outside of an appellate or higher court; still, if they were in
precisely the same venue, they might even get the same judge.

Assuming a judgement against the Jolitzes, an appeal could pretty much be
guaranteed simply by asking for a large enough damage claim that it would
be impossible for them not to appeal (perhaps with the backing of the EFF,
ACLU, or a similar organization).  This would make binding case law, as
it would take place in a federal appellate court.  This could even be
coerced, possibly, by agreeing to a refuation of damage claims entirely
for a plea of infringement.

Barring that, an establisment of AT&T's rights to the Net/2 code would
certainly establish their rights to BSDI's and others code as a derivitive
work, and precedent be damned.  The BSDI suit would be reduced to an
assertaion of their rights under Article 12, Section I of the constituion
and under Title 17 of US law (assuming they even gave a damn about trying
to claim inclusion of copyrighted materials as long as they could stop the
use of said materials).

>That's one major reason why in criminal cases we provide free counsel
>if needed, so that the judgement has validity, as a related example.

This is civil law, not criminal law, and I don't think the example is
related, except in that it shows the basis for the enforcement of case
law in criminal cases.


					Terry Lambert
					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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