[TUHS] SCO sues IBM?

Jeffrey Sharp jss at subatomix.com
Wed Mar 12 14:34:47 AEST 2003

On Monday, March 10, 2003, Dennis Ritchie wrote:
> In case anyone is interested, I retrieved some fraction of the court
> papers from the early 90s USL suit against BSDI and UCB. ... USL pulled
> back after an injunction was denied. By the time the 1993 ruling was
> issued, USL was being taken over by Novell.

It seems that all descendants of 4.4BSD-Lite are immune to SCO, due to the
terms of the settlement. If you're in a hurry, skip to the last paragraph.

Source: Marshall Kirk McKusick, "Twenty Years of Berkeley Unix: From
AT&T-Owned to Freely Redistributable".

----- BEGIN -----

In addition to the groups organized to freely redistribute systems built
around the Networking Release 2 tape, a company, Berkeley Software Design,
Incorporated (BSDI), was formed to develop and distribute a commercially
supported version of the code. (More information about BSDI can be found at
http://www.bsdi.com.) Like the other groups, they started by adding the six
missing files that Bill Jolitz had written for his 386/BSD release. BSDI
began selling their system including both source and binaries in January
1992 for $995. They began running advertisements touting their 99% discount
over the price charged for System V source plus binary systems. Interested
readers were told to call 1-800-ITS-Unix.

Shortly after BSDI began their sales campaign, they received a letter from
Unix System Laboratories (USL) (a mostly-owned subsidiary of AT&T spun off
to develop and sell Unix). The letter demanded that they stop promoting
their product as Unix and in particular that they stop using the deceptive
phone number. Although the phone number was promptly dropped and the
advertisements changed to explain that the product was not Unix, USL was
still unhappy and filed suit to enjoin BSDI from selling their product. The
suit alleged that the BSDI product contained proprietary USL code and trade
secrets. USL sought to get an injunction to halt BSDI's sales until the
lawsuit was resolved, claiming that they would suffer irreparable harm from
the loss of their trade secrets if the BSDI distributions continued.

At the preliminary hearing for the injunction, BSDI contended that they were
simply using the sources being freely distributed by the University of
California plus six additional files. They were willing to discuss the
content of any of the six added files, but did not believe that they should
be held responsible for the files being distributed by the University of
California. The judge agreed with BSDI's argument and told USL that they
would have to restate their complaint based solely on the six files or he
would dismiss it. Recognizing that they would have a hard time making a case
from just the six files, USL decided to refile the suit against both BSDI
and the University of California. As before, USL requested an injunction on
the shipping of Networking Release 2 from the University and on the BSDI

With the impending injunction hearing just a few short weeks away,
preparation began in earnest. All the members of the CSRG were deposed as
were nearly everyone employed at BSDI. Briefs, counter-briefs, and
counter-counter-briefs flew back and forth between the lawyers. Keith Bostic
and I personally had to write several hundred pages of material that found
its way into various briefs.

In December 1992, Dickinson R. Debevoise, a United States District Judge in
New Jersey, heard the arguments for the injunction. Although judges usually
rule on injunction requests immediately, he decided to take it under
advisement. On a Friday about six weeks later, he issued a forty-page
opinion in which he denied the injunction and threw out all but two of the
complaints. The remaining two complaints were narrowed to recent copyrights
and the possibility of the loss of trade secrets. He also suggested that the
matter should be heard in a state court system before being heard in the
federal court system.

The University of California took the hint and rushed into California state
court the following Monday morning with a counter-suit against USL. By
filing first in California, the University had established the locale of any
further state court action. Constitutional law requires all state filing to
be done in a single state to prevent a litigant with deep pockets from
bleeding an opponent dry by filing fifty cases against them in every state.
The result was that if USL wanted to take any action against the University
in state courts, they would be forced to do so in California rather than in
their home state of New Jersey.

The University's suit claimed that USL had failed in their obligation to
provide due credit to the University for the use of BSD code in System V as
required by the license that they had signed with the University. If the
claim were found to be valid, the University asked that USL be forced to
reprint all their documentation with the appropriate due credit added, to
notify all their licensees of their oversight, and to run full-page
advertisements in major publications such as The Wall Street Journal and
Fortune magazine notifying the business world of their inadvertent

Soon after the filing in state court, USL was bought from AT&T by Novell.
The CEO of Novell, Ray Noorda, stated publicly that he would rather compete
in the marketplace than in court. By the summer of 1993, settlement talks
had started. Unfortunately, the two sides had dug in so deep that the talks
proceed slowly. With some further prodding by Ray Noorda on the USL side,
many of the sticking points were removed and a settlement was finally
reached in January 1994. The result was that three files were removed from
the 18,000 that made up Networking Release 2, and a number of minor changes
were made to other files. In addition, the University agreed to add USL
copyrights to about 70 files, although those files continued to be freely

The newly blessed release was called 4.4BSD-Lite and was released in June
1994 under terms identical to those used for the Networking releases.
Specifically, the terms allow free redistribution in source and binary form
subject only to the constraint that the University copyrights remain intact
and that the University receive credit when others use the code.
Simultaneously, the complete system was released as 4.4BSD-Encumbered, which
still required recipients to have a USL source license.

The lawsuit settlement also stipulated that USL would not sue any
organization using 4.4BSD-Lite as the base for their system. So, all the BSD
groups that were doing releases at that time, BSDI, NetBSD, and FreeBSD, had
to restart their code base with the 4.4BSD-Lite sources into which they then
merged their enhancements and improvements. While this reintegration caused
a short-term delay in the development of the various BSD systems, it was a
blessing in disguise since it forced all the divergent groups to
resynchronize with the three years of development that had occurred at the
CSRG since the release of Networking Release 2.

----- END -----

Jeffrey Sharp

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