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From: friedman@gnu.ai.mit.edu (Noah Friedman)
Newsgroups: comp.unix.bsd,misc.int-property,gnu.misc.discuss
Subject: LPF's position on USL vs. BSDI lawsuit
Message-ID: <FRIEDMAN.92Aug11055203@nutrimat.gnu.ai.mit.edu>
Date: 11 Aug 92 09:52:03 GMT
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[The following is a statement from the LPF which I am posting on their
behalf. Followups have been directed to misc.int-property. -noah]
People have asked why the LPF hasn't said anything about the lawsuit
by USL (a subsidiary of AT&T) against the University of California at
Berkeley and against BSDI.
The reason is because we don't yet know whether this lawsuit falls
within the scope of concern of the LPF. This is because the USL
allegations are vague. The crucial claim is that
27. This statement is likewise materially false and misleading
in that, to the extent the BSDI "LICENSED PROGRAM" is (as BSDI
claims) based upon Berkeley's Networking Release 2, it is in fact
based upon, copied from or derived from AT&T's code, such that
users of the BSDI program require a license from AT&T or its
successor, USL.
and it is not clear what sort of illegality is charged.
This could be an allegation that actual code was copied, in which case
the issue is not one of concern to the LPF. The LPF stands for the
freedom to write software, but it is not opposed to owning individual
programs that one has written, and this includes USL.
On the other hand, perhaps an interface copyright claim is lurking
within "otherwise derived". Or USL could interpret it this way if
other interpretations prove unfavorable. This would bring the case
directly within the LPF's area of concern.
However, the case may fall into the area of programming freedom in a
wider sense, as an example of using the power of money to harass. For
several reasons, the actions of USL would be an abuse even if the
allegation were true:
NET2 is a collection of many different programs and parts of
programs written by different people and institutions. While they
work together, they are unrelated as regards authorship. To
charge that NET2 as a single entity infringes some (unspecified)
right is like pointing at a bookstore and saying that its entire
contents are illegal because of unidentified books.
USL has not even specified what sort of illegality they allege; they
want BSDI to be judged as vaguely in the wrong, disregarding what sort
of copying and distribution the law permits.
USL originally sued BSDI, alleging misconduct by UCB, not by
BSDI. At the time, UCB had received no word of complaint from USL
about the releases of free software, which had begun in 1988. The
release of NET2 took place about a year before the lawsuit against
BSDI.
UCB made assiduous efforts to avoid including any AT&T code in the
NET2 release, and this included several attempts over a period of
years to ask USL whether they regarded certain programs as in any
way violating their copyrights or trade secrets. USL refused to
answer.
USL has sued the lawyers of BSDI and UCB, merely for raising
objections to the questions that USL wanted Mike Karels to
answer.
Perhaps these issues should be a matter of concern to the LPF, even
though the legality of copying code is not one. However, the problems
of our legal system exposed here have nothing specifically to do with
software; the ability of the wealthy to deny others their legal rights
is a general phenomenon.
Also, the main focus of the LPF is on changing the legal system for
software, not on individual cases, and it is not clear what change in
the system we should advocate to solve these problems. This case does
not suggest a need for changes in copyright or trade secret law for
software because the defendants will probably win under existing
law--provided they can manage to last until the case is decided.
[ for more info about the LPF, write to league@prep.ai.mit.edu --noah ]