[TUHS] Trade Secrets and Copyrights [was History of cal(1)]

[Clem Cole via TUHS]

below

On Fri, Sep 19, 2025 at 6:15 PM Warner Losh <imp at bsdimp.com
<https://mail.google.com/mail/?view=cm&fs=1&tf=1&to=imp@bsdimp.com>> wrote:

> It's worse than that. The US joined the Berne Convention in 1980, which
> threw a lot of monkey wrenches into things. The 1980 Copyright act changed
> a lot of things. Prior to that, you could not copyright software *AT*ALL*.
> This is why Unix was done via Trade Secret: they couldn't copyright the
> software.
>
Be careful, long before the Berne Convention, US companies most certainly
could, and AT&T did put a copyright *i**n the UNIX source* as early as
1973's Fifth Edition.

FWIW I just typed: find v[567]* -type f -print | xargs grep -i -n copyright
| more
v5_FifthEdition/UNIX-v5man.html:86:Copyright@: 1972, 1973, 1974</p>
v5_FifthEdition/UNIX-v5man.html:97:Copyright <span class="F100" style="
font-size:11pt;">© </span><span style="">1972, 1973, 1974</span></p>
Binary file v5_FifthEdition/UNIX-v5man.pdf matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk.dsk matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk1.dsk matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk2.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk1.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk2.dsk matches
v5_FifthEdition/usr/sys/conf/conf.c:2: *        Copyright 1974 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/conf/low.s:1:/ Copyright 1974 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/conf/mch.s:1:/ Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/conf/mkconf.c:218:      "/ Copyright 1974 Bell
Telephone Laboratories Inc",
v5_FifthEdition/usr/sys/conf/mkconf.c:279:      " *\tCopyright 1974 Bell
Telephone Laboratories Inc",
v5_FifthEdition/usr/sys/dmr/bio.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/cat.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dh.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dhdm.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dhfdm.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dn.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/kl.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/lp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/mem.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/partab.c:2: *       Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/dmr/pc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rf.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rk.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tm.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tty.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/vs.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/vt.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/alloc.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/clock.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/fio.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/iget.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/main.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/malloc.c:3: *       Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/nami.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
:^C

The real problem with copyright was that until 1983, with *Apple Computer,
Inc v. Franklin Computer Corp *714 F.2d 1240.  A US appellate court case
ruled that binaries can also be copyrighted, not just the source code. [I
recommend reading:
https://internetlegal.com/impact-of-apple-vs-franklin-decision/]

Until the AT&T v. BSDi/UCB case, I had never considered trade secrets
related to UNIX technology.   I don't remember anyone who did in those
days.  In fact, because of the copyright clause, Bostic had set out to
rewrite any UNIX utility that might have been called a derivative work (as
an example, that's why he wrote nvi -- because ex/vi had started out as an
extension to ed).  But then the lawsuit came about, a large number of us
were worried about copyright, — which is why so many of us switched from
*BSD to Linux, even though Linux was still a relatively new and unproven
platform at the time (e.g., not much more than the toy OS you might have
seen in OS class).

Remember, the Franklin case is how the idea of the "clean room" was
created.  The problem *BSD had was that while a lot of code was written
from scratch, it was hardly done using the formal clean room approach.
Most people writing those new utilities certainly had seen the AT&T code.
Many of us knew that, at places like the USENIX conference, we talked about
in the hallways. If AT&T won, we would be able to fall back to Linux, so
let's make it better.  FWIW: when Coherent came on the scene, Dennis was
part of the team that was asked to examine their code.  The conclusion was
that it was not a direct "rip off" of the BTL code, but certainly the
people who wrote it were familiar with it. For whatever reason, at the
time. AT&T's legal team backed down, and Coherent stayed on the market.

That said, in the BSDi case, the hacker community got it wrong.  AT&T went
after BSDi/UCB under the trade secret claim, not copyright infringement.
And, interestingly, the court did find *that AT&T owned the intellectual
property*    — i.e., >>the core ideas<< which made UNIX so powerful and
unique.  However, the moment the ACM paper was published, in July 1974, or
Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
secret.


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