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Inside the Linux arcana

David Berlind ZDNet.com

Published: 17 Mar 2004 15:25 GMT

Had the case been settled in court, it might have set the precedent for what constitutes an illegitimate derivative work, a precedent that might have been relevant to the current cases involving SCO. Net/2's roots can be traced back to a set of TCP/IP network utilities that were developed without USL's involvement, but were used to network-enable BSD, an operating system that still contained AT&T intellectual property. According to McKusick's book, UC Berkeley started with those core networking utilities and worked backwards through the rest of BSD, slowly replacing any old code to which the USL copyrights applied.

SCO maintains that the practice of using code (for example, the networking utilities) that wouldn't have existed in the first place had it not been for the existence of an original core (the AT&T-encumbered version of BSD), and then working backwards from that point to replace the original core so as to arrive at a completely new and unencumbered product, is a disallowed form of derivation. Such a process is not the basis of an SCO claim against UC Berkeley, but rather, IBM. From a market point of view, the existence of BSDi (and its marketing language) proved how such a derivation process could result in an offering that undermines the business of the IP holder to the original core.

USL must have seen it that way as well, suing on the grounds that the release of the BSD operating system resulted in the exposure of its trade secrets while also violating its copyrights and trademarks. BSDi was targeted as the commercial offender while UC Berkeley earned the dubious honour of being sued because it was the primary source of the code used by BSDi to create its commercial releases. USL was looking to reign in what it saw as a significant threat to its business. However, there was one hitch.

In an Open Source Initiative position paper regarding SCO's complaint against IBM, OSI president Eric Raymond argues that a judge's failure to order an injunction that would have favoured the plaintiffs might have been an early indicator that due to substantial contributions made to Unix by UC Berkeley, the court was unwilling to acknowledge the enforceable rights to Unix that USL was claiming it had.

The case was settled in January 1994 and, though the terms are sealed, the bartering between the plaintiffs and the defendants yielded an awkward situation in which the AT&T/USL copyrights stayed with a relative handful of the approximately 18,000 files in the settlement-driven successor to Net/2: 4.4BSD-Lite. Though 4.4BSD-Lite contained USL's copyrights, UC Berkeley (technically, the Regents of the University of California) was given expansive rights to use and distribute it in BSD without interference from the USL or its successors (such as SCO). One of SCO's complaints is that some of that BSD code found its way into Linux.

Amongst all distributions of Unix, BSD has been the only one to get such access. The arrangement is best summed up by a passage found on the OpenBSD Web site that says, "while AT&T holds the copyrights to much 'Unix' code and documentation, OpenBSD is based largely on Berkeley (BSD) distributions that contain only material known to be free of AT&T copyrights, or material to which AT&T has abandoned its copyright or included licensing terms similar to the Berkeley terms. No material subject to restrictive AT&T copyrights can be included in OpenBSD." OpenBSD is a BSD variant with an emphasis on security.