[TUHS] Re: UNIX System V Release 2.2 gdts Vax-780

["G. Branden Robinson" <g.branden.robinson@gmail.com>]

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[replying only to list]

At 2023-03-17T01:05:56+0000, segaloco via TUHS wrote:
> Aside from just legal matters there's also just the matters of ethics
> and responsibility.  Of course, corporations aren't bastions of these
> principles,

Indeed not.  For any publicly traded company, and not a few privately
held ones, the _only_ ethical principle is, as the cryptocurrency
aficionados say, "number go up!" (increase the share price).

> but playing within the lines in at least some fashion stands to put
> less strain on individual lines of contact and establishes good
> precedent on future-such goals.

This is speculative.  I think the lengthy and expensive SCO v. IBM case
established a (rebuttable) presumption that much of what we call Unix,
at least those parts that the Berkeley CSRG didn't replace or tidy up,
is an orphaned work.[1]  For purposes of copyright litigation, IBM had
(and has) all the money in the world, and SCOX(E) had nearly all the
money in the world thanks to underwriting (by Microsoft and others) who
saw the potential for extracting royalties from every Linux installation
in every data center in the world.

I would also point out that fair use _is_ "playing within the lines".

> If some group were to be found to be incredibly lax with legal
> ramifications out of a perception that they didn't matter, that group
> is much less likely to be able to work through the proper channels in
> the times it does matter.

Researching copyright title would appear to be a costly process, at
least for a work like Unix System V, which had many corporate
contributors, some of which are now defunct or whose status is unknown,
and whose legal successors-in-interest cannot be identified, let alone
for paperwork sufficient to clarify copyright ownership (for just one
aspect of what may have been a diversified business), located.

Think like a corporation: are you going to send off a team of senior
engineers and attorneys to research this stuff for jollies?  For however
long it takes?  What's the ROI?  If you're the director-level person
issuing this decree, you can expect to be challenged to justify yourself
to your Vice President at every quarterly meeting.

Who is going to say "yes" to that sort of project?

> That damage or not to perceptions in some ways could do more lethal
> damage to a historical effort than, say, legal red tape.

I'm sorry, but this view strikes me as cowardly.  Even granting the
existing copyright regime all the legitimacy in the world, I think the
evidence that the Unix System V copyrights have been responsibly
stewarded is meager.

Simply taking the System V sources and using them in commercial product,
without source disclosure, is, I think, the most _likely_ means of
agitating any potential copyright holders into assembling sufficient
documentation to substantiate a claim of copyright ownership to a
standard that wouldn't be laughed out of court.

But I will grant that that could be perceived as a rude and
uncooperative.  If one concealed their provenance, it would rightly be
considered unethical as well.

Consequently, putting the Unix System V sources up as the historical and
educational resource that the history of operating systems research and
development unquestionably establishes them to be, _is_ the gentle,
polite approach calibrated to elicit cooperation from friendly hands
inside firms that may be involved, given that is apparently too costly
for any one of these firms to slap up a web page saying, "yup, it's
ours, and here's the proof!", without exposing themselves to unfriendly
attention from the Federal Trade Commission for false dealing.

Getting a DMCA takedown notice would not, I am sure, be pleasant, but it
happens all the time and as far as I can tell it does not ruin lives or
even, of itself, cost people money.  That said, I wouldn't embark on the
project without competent legal assistance that is prepared to file a
counter-notice, to discourage the issue of a BS takedown notice.[2]  The
whole point is to build a documentary record we can have some confidence
in, for scholarly purposes among others.  But scholarly purposes don't
suffice to motivate anyone who has, or thinks they might have, the
rights to Unix System V, or they would have told us already.

If we want to find out who really has the rights to this stuff, we've
got to give them a reason to find out whether they do and announce
themselves.

As noted above, we've got to give them a reason to say "yes", even if it
comes with a "no": "yes, this is mine, and here is how I know, and no,
you can't do what you're doing".  And that means posing a question that
share price-sensitive executives are willing to find the answer to.

If you want my prediction, I don't think anyone will do anything.  The
answer to the question will not be uttered, but will resemble this.

"We believe this asset has no commercial value.  We don't know if we own
it or not, and finding out would cost money we're not willing to spend."

If I'm right, we'll be waiting a long time for that takedown notice.

Regards,
Branden

[1] https://en.wikipedia.org/wiki/Orphan_work

[2] Again, I'm not a lawyer, but my half-educated guess is that either
    the original takedown notice itself, if sufficiently clear, or any
    response to a counter-notice, would have to sufficiently clearly
    allege ownership of Unix System V copyrights that if the allegations
    were false, they would constitute "slander of title", which is one
    of the torts upon which the SCO v. IBM case turned.  So it would
    still accomplish our mission: if someone steps forward falsely
    claiming copyright ownership of the code, they open themselves up to
    liability to those firm(s) that actually do.  And if the true
    title-holders take the BS title-holders to court over it, we get our
    question answered then, too.

    If the lawsuit is profitable, then it's not inconceivable that we
    will establish the exact sort of friendly relationship with the true
    title-holders that you are afraid of jeopardizing.  Because anyone
    willing to issue a DMCA takedown notice--to a zero-profit bunch of
    old geeks with a web page--falsely claiming ownership of Unix System
    V copyrights is, I suspect, already making these fraudulent claims
    in private communications to firms who are paying them license fees.
    Why?  Because why does any corporation do anything?  For the money.

    This is one way we could go from being bold to being bona fide.

    A bit of courage could bring benefits for all except fraudsters.

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