USL Lawsuit Targets UC At Berkeley, BSDI: Copyright Infringement Case May Have Broad Industry Impact

Mitch Wagner
Open Systems Today

August 3, 1992

Summit, N.J. -- Unix Systems Laboratories has sued the University of California at Berkeley and a private company that has commercialized UCB's operating-system offerings, charging that both of them infringe on USL's copyrights and trade secrets.

Users and programmers fear that the lawsuit could go widely beyond the impact on a single, small company, charging that it could stifle the free exchange of ideas that has fertilized creativity in Unix software development, and also make it impossible for startups to produce inexpensive or public-domain Unix implementations.

USL is charging that the university's recent Networking Release 2 software, which was the basis for the product BSD/386 from Berkeley Software Design Inc., makes use of proprietary USL code, which means that the university's claims that NET2 users owe no license fees to USL are false, as are similar claims by BSDI.

BSDI and the university both deny the claim. An attorney for BSDI-which has no legal ties to the university-accused USL of trying to bully competition out of existence.

"I think that the goal of USL is to cast a cloud and intimidate people and try to sow confusion, and hope that that alone might prevent BSDI from going forward in its business, without having to prove a case," said Leslie Fithian, attorney for BSDI, of Falls Church, Va.

Not so, said Larry Lytle, USL spokesman.

"For us, it is an intellectual rights issue," he said. "It certainly is not uncommon for any company that has trade secrets or trademarks or copyrights to file suit to protect their secrets. If you don't, you lose your rights. These are our corporate assets and we have a lot invested in them. They are important to us."

The lawsuit seeks injunctions that would bar BSDI from further distribution of its software, force it to recall code that's already been distributed and stop the company from working with programmers with knowledge of Unix source code to develop multiuser systems.

USL also is seeking to have Berkeley enjoined against further violations of their licensing agreement and to have the university directed to recall illegal copies of NET2 and BSD.

In addition, USL wants compensatory and punitive damages and court costs from both Berkeley and BSDI.

The complaint charges BSDI and Berkeley with copyright infringements, misappropriations of trade secrets and confidential information, as well as breach-of-contract violations, trademark infringement and violations of the federal Lanham Act, which covers truth in advertising.

The amended complaint was filed in the United States District Court in New Jersey July 24. It expands a lawsuit filed against BSDI alone in April, which charged BSDI with false advertising for its claims that its software did not require a USL license, and misuse of the USL trademark because BSDI was using an 800 information number, 1-800-ITS-UNIX.

At the focus of the dispute is the Berkeley NET2 release, the flower of one of two branches of development work going on at Berkeley. While the BSD implementation of Unix was developed as a complete version of the operating system that Berkeley says does contain Unix source and requires a license from USL, the Networking releases do not contain any Unix source, are in the public domain and can be distributed freely, said Keith Bostic, a programmer/analyst at Berkeley and one of the chief developers of the BSD implementation, 4BSD.

NET2, released at the end of June, is a broad collection of useful utilities, but not a fully functional operating system, Bostic said, and it lacks buffers to communicate with the filesystem and device drivers to communicate with terminals.

BSDI, which was founded by programmers from Berkeley, Sun Microsystems and elsewhere, took the NET2 implementation and built it into a Unix-compatible operating system priced at less than $1,000, with both source and binary licenses available, said BSDI sources earlier this year. They contend that BSDI has no Unix code.

USL contends that BSDI and NET2 not only make use of USL code, but also of proprietary USL concepts and methods, though the company declined to give examples.

USL also said the lawsuit changes none of its policies and practices. The company has no intent to stifle universities and research institutions from using Unix source code, and companies such as Mt. Xinu still will be free to distribute BSD implementations, but the code requires licensing from USL, said Lytle.

Likewise, companies like the Mark Williams Co. will be free to develop Unix work-alikes, if those systems conform to Unix APIs and do not infringe on trade secrets or copyrights, he said.

But users and programmers were not reassured, saying that much of the innovation in Unix over past years has come out of Berkeley development. The lawsuit will have a stifling effect on future code-sharing and development, they say. Many features that led to USL's success with Unix-including sockets, E-mail features and the C shell-came out of Berkeley.

The manner in which USL is prosecuting the lawsuit also is unfair, said Adam Richter, owner of Yggdrasil Computing Infrastructure, which is seeking to develop its own turnkey Unix based on NET2. "It wouldn't be a big issue if they simply identified which files had been copied or which sections of which files have been copied," he said. "But as far as we can tell, they seem to be saying, `Some sort of intellectual property infringement has taken place here, but we're not going to say what the basis of that infringement is, or what else is involved.' "

Users also expressed concern that exposure to USL source is likely to earn a developer a trade-secrets lawsuit, since that is one of the grounds of the USL lawsuit.

"Six years ago, I worked for a university and it's my name that's on that software license and I'd like to be able to continue to write software," said Paul Haas, a system administrator at OTA Limited Partnership, Ann Arbor, Mich.

Copyright 1992 CMP Publications, Inc. All rights reserved.