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Portion of Berkeley countersuit against USL Full text available on request
From: David Farber <farber () central cis upenn edu>
Date: Fri, 6 Aug 1993 11:44:03 +0900
JOEL LINZNER CARLA J. SHAPREAU CROSBY, HEAFEY, ROACH & MAY Professional Corporation 1999 Harrison Street Oakland, California 94612 Telephone (510) 763-2000 JAMES E. HOLST JOHN F. LUNDBERG MARY E. MacDONALD University of California 300 Lakeside Drive, 7th Floor Oakland, California 94612-3565 Telephone: (510) 987-9800 Attorneys for Plaintiff The Regents of the University of California SUPERIOR COURT OF CALIFORNIA - COUNTY OF ALAMEDA THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Plaintiff, v. UNIX SYSTEM LABORATORIES, INC., Defendant. No. 717864-3 COMPLAINT Plaintiff The Regents of the University of California ("the University") alleges as follows: 1. Defendant Unix Systems Laboratories, Inc. ("USL") is a Delaware corporation with its principal place of business in Summit, New Jersey. USL is a majority-owned subsidiary of AT&T engaged in the development, manufacture, licensing and sale of computer software operating systems and related products and services. The University of California is a public trust created under Article IX, Section 9 of the California Constitution that is administered by The Regents of the University of California. FACTUAL BACKGROUND 2. Commencing in the 1970s, the University began developing software named the Berkeley Software Distribution ("BSD"). The BSD releases are a series of Unix-compatible software distributions that incorporate leading edge technology and are developed by the University of California Berkeley Computer Systems Research Group ("CSRG"). 3. On or about March 4, 1986, the University and AT&T entered into a written license agreement for the use of the University's 4.2 BSD and 4.3 BSD computer programs and documentation, a copy of the agreement is attached here to as Exhibit A. 4. On or about May 4, 1989, the University and AT&T entered into a written license agreement for the use of the University's 4.3 BSD-Tahoe computer programs and documentation, a copy of which is attached hereto as Exhibit B. The University's 4.3 BSD-Tahoe computer programs and documentation were made available to USL under the same terms and conditions set forth in the March 4, 1986 agreement. (The 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe agreements will hereinafter be collectively referred to as the "BSD Agreements.") 5. AT&T licensed, for itself and its subsidiaries, the right to use and sublicense the University's BSD software for, among other purposes, the development of AT&T's (and subsequently USL's) commercial Unix Operating System. The price charged by the University for a license to use its BSD software and documentation was, and is, a nominal fee to cover the cost of production and shipping of the software and related documentation. The University has never licensed its BSD software for profit. 6. The BSD Agreements require that USL give the University proper credit and recognition for its use of any part of 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe in Paragraph 8 as follows: Proper Credit and Recognition. In the use of any part of 4.2 BSD and 4.3 BSD, AT&T will give appropriate credit to the University and the Electrical Engineering and Computer Sciences Department at the Berkeley Campus of the University of California and Other Contributors for their roles in its development and will require sublicensees to give such credit. If AT&T is providing documentation similar to that which is provided with 4.2 BSD and 4.3 BSD, notices similar to those included in that documentation suffice to satisfy this requirement. If AT&T is providing new documentation, this requirement will be satisfied if each document includes the following statement: 'This software and documentation is based in part on the Fourth Berkeley Software distribution under license from The Regents of the University of California. We acknowledge the following individuals and institutions for their role in its development: [insert names of individuals and institutions which appear in the documentation provided to AT&T as part of 4.2 BSD and 4.3 BSD for those portions of said Distribution used by AT&T.]' 7. In addition, in Paragraph 7 of the BSD Agreements, the University granted to AT&T and its subsidiaries the right to sublicense 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe to third parties as long as AT&T and its subsidiaries required its sublicensees to comply with the "Proper Credit and Recognition" obligations contained in Paragraph 8, referenced above. The University is informed and believes that USL has sublicensed 4.2 BSD, 4.3 BSD, and/or 4.3 BSD-Tahoe to sublicensees, including, but not limited to Silicon Graphics, Inc., the Santa Cruz Operation, Inc., and Intel Corporation, who have failed to give the University proper credit and recognition in the following documentation as required under Paragraph 8 of the BSD Agreements: Silicon Graphics' IRIX User's Reference Manual," Santa Cruz Operation's "Open Desktop Administrator's Guide," and Intel's "IBCS2." 8. On or about November 1, 1989, AT&T assigned and transferred its rights to, among other things, System V, Release 4 of the Unix Operating System to USL. The University is informed and believes that AT&T assigned and transferred its rights under the BSD Agreements to USL. 9. The 4.3 BSD-Tahoe software expressly provides as follows: Copyright (c) 1982, 1986 Regents of the University of California. All rights reserved. Redistribution and use in source and binary forms are permitted provided that the above copyright notice and this paragraph are duplicated in all such forms and that any documentation, advertising materials, and other materials related to such distribution and use acknowledge that the software was developed by the University of California, Berkeley. USL failed to include the University's copyright notice in its Unix System V, Release 4. 10. Substantial portions (perhaps as much as 50%) of the current version of USL's Unix Operating System, "System V, Release 4," is comprised of the University's BSD code. USL has paid no royalties for its use of the University's BSD software, although USL currently licenses its Unix Operating System for approximately $200,000. Although USL itself states, the Unix Operating System has become "one of the most highly regarded computer systems in the world," this is largely the result of BSD software developed by the University and its contributors which has been incorporated into USL's Unix Operating System. The only form of compensation the University required USL to provide (other than the nominal license fee) was credit and recognition to the University for its valuable software and related documentation. USL failed to provide the University with its due credit and recognition under the applicable license agreements.
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- Portion of Berkeley countersuit against USL Full text available on request David Farber (Aug 05)