[TUHS] Re: Is OpenText Corporation the Current System V Copyright Holder?

[Warner Losh <imp@bsdimp.com>]

[-- Attachment #1: Type: text/plain, Size: 7419 bytes --]

On Wed, Mar 13, 2024 at 6:33 PM segaloco via TUHS <tuhs@tuhs.org> wrote:

> Did some reading today, curious on the current state of things with AT&T's
> UNIX copyright genealogy.  The series of events as I understand it are:
>
> AT&T partners with Novell for the Univel initiative.
>
> Novell then acquires System V and USL from AT&T.
>

Substantially all the assets. However, what does that mean? In this case, I
think it does include copyright.


> Novell sells UNIX System V's source to SCO, but as the courts have ruled,
> not the copyright.
>

Which puts, some say, the ancient Unix license grants at risk. However, I'd
contend that Novell knew of the grant and did nothing, so might be barred
by estoppel from asserting it at a later date. While copyright law
generally doesn't work like this, were one to create a defense of copyright
abuse for someone popping up years after the apparent copyright holder
granted permission, a defense of estoppel would be good in this case where
Novell knew, or should have known, this was going on, but did nothing to
fight the fraud of granting a license w/o rights.


> Novell gets purchased by Microfocus.
>
> Microfocus gets purchased by OpenText Corporation.
>
> Does this make OpenText the current copyright holders of the commercial
> UNIX line from AT&T.
>

It would depend a lot, like we found in the SCO litigation, what exactly
was transferred, what the contracts say, and how any ambiguity in said
contracts is adjudicated. This many years after the fact, such litigation
may be tricky to undertake.


> What got me looking a bit closer into this is curiosity regarding how the
> opening of Solaris and the CDDL may impact publication of UNIX code between
> System III and SVR4.  I then felt the need to refresh on who might be the
> current copyright holder and this is where the trail has lead me.
>

At the time, though I have no reference for it, Sun bought a paid-up
license from AT&T and part of that purchase included the right to
distribute the source code in the way they did. This was a special deal Sun
cut with AT&T. Sun also had to renegotiate scores of 3rd party contracts to
include enough of the system to be viable. I recall reading this in the
press, as well as hearing about it from friends at Sun. Years later, over
drinks, I heard about it from Glen Weinberg who was my VP. He'd be
instrumental in pulling it together. Not exactly a firsthand written
source, but someone that would know... Also, though, that was over a decade
ago, wine was involved, so I might be misremembering the details, but I'm
sure of the main thrust...

I also found:

So how is it Sun is permitted to open source Unix outright while IBM is
sued for more than US$5 billion in damages? Sun is mum on particulars, but
it has said it licensed additional rights in a 2003 deal in which it paid
SCO US$9.3 million.

at
https://www.zdnet.com/article/sun-poised-to-take-open-source-solaris-step/
dated in 2005.


> My understanding too is that Sun's release under the CDDL set the
> precedent that other sub-licencees of System V codebases are also at
> liberty to relicense their codebases, but this may be reading too far into
> it.


I have never, ever once heard that. There's no precedent here: It's all
what the contracts say. Since Sun paid cash money (or maybe stock) to AT&T,
that's a new, special contract. I don't think this is implied even a tiny
bit: there's no contract that permits it.


> There's also the concern that the ghost of SCO will continue to punish
> anyone else who tries with costly-but-doomed-to-fail litigation.


Ah, that's different... Though SCO's rights as a revenue collector, but not
rights hold, were established, so it's unlikely they will... Their latest
litigation isn't based on their Unix IP.


> Have there been any happenings lately with regards to getting AT&T UNIX
> post-PDP-11 opened up more in the world?


So we have Berkeley Unix: V32, which formed the basis for 3BSD, had a
preliminary ruling that AT&T lost its copyrights to at least V32, the Vax
7th Edition port they did, due to the fact that (a) they didn't mark the
source as copyright and (b) they widely distributed it. This preliminary
ruling was never made final, as the case was settled. But it was the result
of a very extensive record that was established by the litigants. But, if
you talk to some of the old CSRG folks, they'll tell you that frees up BSD.
In addition, the settlement of the case put to bed the issue in the BSD
world by AT&T explicitly licensing some files and Berkeley creating
4.4BSD-lite. So from that perspective, that bit of post PDP-11 Unix is on
solid legal ground.

Everything else? Apart from Lucent licensing the 8th, 9th and 10th Edition
Unix permissively, there's very little. You can find the sources online, if
you really want. You can study them and write commentary about them: that's
black letter law on fair use. You can't, however, build a new system based
on them, since a commercial use would venture outside of fair use
(potentially: abandonware has never been litigated so there's a somewhat
high legal risk you might be infringing on the rights. Novel copyright
legal theories are a dime a dozen and rarely ultimately successful).


> Reading up a bit on OpenText's business, they don't seem like they're
> invested in the OS world, seems that their primary sector is content
> management.  Granted, there's certainly under-the-radar trading of bits and
> pieces, but it would be nice to have some more certainty about what can
> happen out in the open.
>

People have worked the back channels to try to even find the right person
to talk to, so far to no good effect. They were primarily interested in
clearing up the legal ambiguity surrounding the Ancient Unix Licenses, but
even that narrow ask has gone nowhere to date (at least publicly, I'm not
privy to what might be still private).

The main problem with any of this is that all the companies that took
System V made changes to customize it for their hardware. That means even
if OpenText is the successor of interest for the Unix Copyrights, and even
if you could get someone there interested in granting a super-permissive
license on all that material (putting aside for the moment what, exactly,
was copyrighted and transferred) for no financial benefit for OpenText
(only the risk of a counter suit from someone else who, though backroom
deals not disclosed to the public, who thinks they own the rights).  Even
if you get through all that, none of the System V system would be opened up
because the licensees of those systems also have rights to what they
produced and without their permission, you would not have rights to
distribute things permissively. At best, it would semi-legitimize some of
the available to download tapes that one can find on the internet that
purport to be verbatim copies of the source from AT&T. Though much of the
later work was done by third parties and consortia, so even if AT&T
successor in interest gave the nod, those other parties might not have
granted AT&T the right to do this.

So I'm not optimistic we'll ever see any further opening up of Ancient
Unix, which is now even older than the 7th edition was when the Ancient
Unix License was released.

Warner

[-- Attachment #2: Type: text/html, Size: 9307 bytes --]