From: hedrick@dumas.rutgers.edu (Charles Hedrick) Subject: Re: BSD Unix aka Freedom is a myth.... Date: 26 Jul 1992 18:29:24 GMT
There's nothing illegal about using "Unix ideas". You can be sued
only if you violate some specific intellectual property right. These
can be created by copyright, patent, trade secret, or special
contractual arrangement. Pieces of Unix are protected by each of
these. Most of the new source code is copyrighted. I believe there
is at least one patent (the setuid bit), which however I think may be
either expired or not enforced. But the primary issue in Berkeley's
case is trade secret and licenses that involve "methods and concepts".
Berkeley presumably agreed in their license agreement to regard all of
the methods and concepts of Unix as trade secrets. If Berkeley has
really recoded everything so that there is no actual Unix code, then
there should be no copyright issues. However the claim would be that
the code still used the same concepts and methods as the original
code. Indeed in theory even the networking code, which is completely
original to Berkeley, might also involve general Unix methods and
concepts. However things could get complex, because ATT has allowed
publication of books by their own people on Unix internals. Trade
secrets clauses always say that if information because available to
the general public, through no fault of yours, then it is no longer a
trade secret. So one would have to show that either (1) Berkeley's
code had been written by people who had not seen the ATT code, or (2)
the code used only those concepts and methods that had become public.
BSDI may be in a different situation, because they have signed no
trade secret agreements with ATT, and have no access to ATT trade
secrets, except from Berkeley. I don't know enough about trade secret
law to be sure whether they are responsible for violations of
Berkeley's license by Berkeley (if any such violations occured). This
is a situation where as a non-lawyer I don't even want to speculate.
But I'm pretty sure BSDI is in a different legal situation than
Berkeley. ATT may be trying to finesse this issue by using false
advertising rather than a direct suit for violation of trade secret.
I think the theory is that if Berkeley has violated their agreements,
then BSDI's claim that their code is ATT-free is false, even if BSDI
themselves can't be sued for that violation.
However the point of all this is to talk about the implications for
Linux. I'm assuming that Linus has not had access to any ATT trade
secrets. Code written from scratch by someone with no access to ATT
information is clearly not in violation of copyrights, trade secrets,
or concepts and methods. It could be in violation of patents if there
were any patents and those patents were valid. My guess is that there
are no relevant patents, but that's just a guess. As far as I know,
Linux, Hurd, Coherent, and other Unix variants done by people without
access to ATT code are safe. In order to maintain that status, people
with access to ATT code should not contribute any substantial code to
the Linux kernel. (People at MIT may be an exception, if they really
an ATT license that doesn't have the trade secret clause. I frankly
find that hard to believe.) I assume that bug fixes and other minor
tweaks are not a problem.
I've read the ATT claims and BSDI counter-claims. ATT is making only
the most general claims. They do not give any specific examples, nor
do they specific exactly which type of intellectual property right was
violated. BSDI's response compares it to a Xerox suit against Apple,
which was apparently very similar. Like ATT's, they did not give any
specific violation of intellectual property right. Instead, they sued
for false advertising, as ATT has done here. (The alleged falsehood
is BSDI's claim that the code is free from ATT licensing.) BSDI says
that you can't make a claim that this is false without showing that
some specific intellectual property claim is violated. In effect they
say that the suit is too vague to be meaningful.
The question of the use of the Unix name seems more clear-cut. It is
well-known to be an ATT trademark. Unless someone wants to try to
prove that it has become a generic name, it should not be used without
ATT's permission. It appears that BSDI has settled on this issue.
As usual, before taking actions that depend critically on these
issues, consult a lawyer who is familiar with intellectual property
issue.