November 20, 2003

BSD developers speak out on SCO campaign

Author: Chris Preimesberger and Joe Barr

In view of the latest SCO lawsuit news conference, we have been talking to BSD professionals to get their opinions, including one of the principals in the AT&T vs. Berkeley Software Design, Inc. lawsuit settlement of 1994; a disillusioned former SCO employee; and several other BSD developers.

At issue is the charge SCO has made in a court case against IBM that copyrighted UNIX code has been incorporated into Linux and distributed without authorization or appropriate copyright notices. Code that has been identified by SCO includes Unix System V code as well as copyrighted code included in the 1994 settlement between Unix Systems Laboratories, Inc. and BSD, Inc. SCO acquired this code and associated copyrights in 1995 from Novell. SCO announced Tuesday that it is expanding the scope of its campaign by incorporating a prominent law firm within its ownership.

"We do have copyrights out there now that are being broken," SCO CEO Darl McBride said Tuesday. "We have a situation with other settlement agreements with respect to the BSD case
from a few years ago, where we do have a legal settlement. We are in strong shape to go out and enforce these now, and this is really what (lawyer) David (Boies) and his team are going to be expanding their focus around.

"But more importantly, what we are announcing today is a substantial number of copyright issues that relate to a settlement agreement that is
already in place around the BSD settlement from the 1994 time-frame. As we move forward, we will be outlining those issues. "

So, it appears that McBride and SCO are planning to do something based on the 1994 settlement, though what that is remains unclear. Our take yesterday was that SCO would attack the settlement to have it overturned. Today we are leaning more to the view that SCO is going to claim that the 1994 settlement does not allow the use of Unix code in Linux, even if it was part of 4.4BSD Lite.

Let's start with Kirk McKusick. He's an author, consultant, teacher, and developer who implemented the 4.2BSD fast file system and oversaw the development and release of 4.3BSD and 4.4BSD. He is both a past president of USENIX and the current president, and he has a Ph.D in computer science from UC Berkeley.

McKusick was one of the principals in the Unix System Laboratories, Inc. (the business entity which owned Unix code in the early 1980s; USL was 80 percent owned by AT&T) vs. Berkeley Software Design, Inc.

More on page 2...

NewsForge spoke to McKusick Tuesday afternoon to check his reaction
to SCO's latest moves, whatever they might be, with regards to the BSD
settlement. He told us: "There were two separate settlement
agreements: One between the university (specifically, the Board of Regents) and USL and one between Berkeley Software Design and USL. I have no knowledge what is in the settlement agreement between USL and Berkeley Software Design, so I really can't
comment on that because I just don't know. What I can comment on is
the settlement between USL and the University, because I was involved in
that."

He went on to explain that there was a public statement about the
agreement, in the form of a press release and also a non-public legal agreement, which neither side is supposed to disclose. The press release, Kirk noted, clearly states that "the settlement clears the way for the University to release a new, unencumbered version of the Berkeley 4.4 BSD operating system software, to be called 4.4 BSD-Lite."

The public record of the settlement also stipulates "4.4 BSD-Lite will
not require a license from, nor payment of, royalties to USL." McKusick
could not reveal the contents of the secret version of the agreement,
but he is familiar with that document. As far as his take on SCO's
attempt to now claim copyright infringement on code that USL made public
in the settlement, he said, "They don't seem to have a strong legal foot
to stand on."

Next up: Former SCO employee Jack Craig, now an SDK support engineer at another software company.

They (SCO officials) should be prosecuted like the crooks at Enron. As a past SCO employee, you may hear my indignation below.

While it was later excised and replaced with UDI code, I wonder how the world would take the news that SCO/Caldera paid a contract house in San Jose over $150,000 to port the NetBSD USB stack to osr5! They sure don't mind stealing open source when it suites them!

My rage at them forces this email ... freakin' ghouls!

Hmmm.

From Matt Thomas, a BSD developer:

IANAL, but SCO doesn't have any real chance of getting the ATT/BSD settlement "unsettled." 1) IIRC the lawsuit was dismissed with prejudice, which means ATT (or their successor) can't reopen it; 2) SCO, by agreeing to buy the USL package, implicitly agreed to abide by the terms of any agreement of the purchased entity.

SCO is beating a dead and buried horse if they try to go after BSD.
Think about this analogy: After buying your current home, you decide you
didn't like something the seller twice removed did, so you bring him to court to
fix it. Do you really think the judge isn't going to laugh you out of
court?

If SCO does attempt to reopen it, I think that trying to convince a
district attorney to bring charges of barratry against SCO and its law firm
would be in order. Additionally, a civil lawsuit charging vexatious litigation
might also be prudent."

Personally, I think the most prudent thing for SCO to do is prove they
aren't engaged in a pump-and-dump stock scheme. When the lawsuit started,
the stock price was under a $1, and now it's around $20.

SCO has decided to play legal chicken with IBM. That's akin to a
motorcycle playing chicken with an semi-truck. It seems that SCO is trying an exit
strategy of being so obnoxious that it's cheaper and easier for deep
pockets to buy them out or off than to fight them. One could say that SCO is
acting as a racketeer offering protection services from themselves. If that's
actually true, I have to wonder if a civil lawsuit against SCO under
RICO for extortion would have merit.

From BSD developer Steve Allen:

It doesn't affect BSD at all. The issue was settled in the ATT vs. BSDI
suit many years ago. SCO may lay claim to the SYSV code, but they have
no claim at all on the BSD code.

While I use BSD at home, I do use Linux at work, and from my point of view,
the only danger is that SCO might make some of their silly arguments stick.
But what I've seen of the IBM legal staff's work, I don't believe that
will happen. So, really, as a member of the BSD team, I'm basically on the sidelines
watching.

SCO has no case with BSD, there's nothing to attack there. I'm curious to
see how the no-compete thing with Novell plays out. That would be the more
important issue at this point.

One BSD developer asked us not to use his name with his reaction:

At this time I feel that going after BSD is mostly talk. I think that
the BSD development efforts have been very "clean" with respect to UNIX
Intellectual Property because of Lawsuit v1.0 in the early 90s, so I am
not particularly worried. So I am not going to turn off my 2 BSD boxes,
but I probably will not assist in the legal fight.

SCO seems to be trying to pull off a hostile takeover of Linux to remain
in business, so I think that the Novell-SuSE merger is going to be a
more important effort for their lawsuit. To attack BSD seems rather
foolish to me -- fewer users, less overall investment than Linux and Novell.

More to come, undoubtedly.

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