[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Clem Cole via TUHS]

below

On Fri, Sep 19, 2025 at 6:15 PM Warner Losh <imp@bsdimp.com
<https://mail.google.com/mail/?view=cm&fs=1&tf=1&to=imp@bsdimp.com>> wrote:

> It's worse than that. The US joined the Berne Convention in 1980, which
> threw a lot of monkey wrenches into things. The 1980 Copyright act changed
> a lot of things. Prior to that, you could not copyright software *AT*ALL*.
> This is why Unix was done via Trade Secret: they couldn't copyright the
> software.
>
Be careful, long before the Berne Convention, US companies most certainly
could, and AT&T did put a copyright *i**n the UNIX source* as early as
1973's Fifth Edition.

FWIW I just typed: find v[567]* -type f -print | xargs grep -i -n copyright
| more
v5_FifthEdition/UNIX-v5man.html:86:Copyright@: 1972, 1973, 1974</p>
v5_FifthEdition/UNIX-v5man.html:97:Copyright <span class="F100" style="
font-size:11pt;">© </span><span style="">1972, 1973, 1974</span></p>
Binary file v5_FifthEdition/UNIX-v5man.pdf matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk.dsk matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk1.dsk matches
Binary file v5_FifthEdition/getsrc/unix_v5_rk2.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk1.dsk matches
Binary file v5_FifthEdition/unix-v5-feb-2015/unix_v5_rk2.dsk matches
v5_FifthEdition/usr/sys/conf/conf.c:2: *        Copyright 1974 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/conf/low.s:1:/ Copyright 1974 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/conf/mch.s:1:/ Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/conf/mkconf.c:218:      "/ Copyright 1974 Bell
Telephone Laboratories Inc",
v5_FifthEdition/usr/sys/conf/mkconf.c:279:      " *\tCopyright 1974 Bell
Telephone Laboratories Inc",
v5_FifthEdition/usr/sys/dmr/bio.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/cat.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dh.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dhdm.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dhfdm.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dn.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/dp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/kl.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/lp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/mem.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/partab.c:2: *       Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/dmr/pc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rf.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rk.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/rp.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tc.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tm.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/tty.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/vs.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/dmr/vt.c:3: *   Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/alloc.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/clock.c:3: *        Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/fio.c:3: *  Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/iget.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/main.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
v5_FifthEdition/usr/sys/ken/malloc.c:3: *       Copyright 1973 Bell
Telephone Laboratories Inc
v5_FifthEdition/usr/sys/ken/nami.c:3: * Copyright 1973 Bell Telephone
Laboratories Inc
:^C

The real problem with copyright was that until 1983, with *Apple Computer,
Inc v. Franklin Computer Corp *714 F.2d 1240.  A US appellate court case
ruled that binaries can also be copyrighted, not just the source code. [I
recommend reading:
https://internetlegal.com/impact-of-apple-vs-franklin-decision/]

Until the AT&T v. BSDi/UCB case, I had never considered trade secrets
related to UNIX technology.   I don't remember anyone who did in those
days.  In fact, because of the copyright clause, Bostic had set out to
rewrite any UNIX utility that might have been called a derivative work (as
an example, that's why he wrote nvi -- because ex/vi had started out as an
extension to ed).  But then the lawsuit came about, a large number of us
were worried about copyright, — which is why so many of us switched from
*BSD to Linux, even though Linux was still a relatively new and unproven
platform at the time (e.g., not much more than the toy OS you might have
seen in OS class).

Remember, the Franklin case is how the idea of the "clean room" was
created.  The problem *BSD had was that while a lot of code was written
from scratch, it was hardly done using the formal clean room approach.
Most people writing those new utilities certainly had seen the AT&T code.
Many of us knew that, at places like the USENIX conference, we talked about
in the hallways. If AT&T won, we would be able to fall back to Linux, so
let's make it better.  FWIW: when Coherent came on the scene, Dennis was
part of the team that was asked to examine their code.  The conclusion was
that it was not a direct "rip off" of the BTL code, but certainly the
people who wrote it were familiar with it. For whatever reason, at the
time. AT&T's legal team backed down, and Coherent stayed on the market.

That said, in the BSDi case, the hacker community got it wrong.  AT&T went
after BSDi/UCB under the trade secret claim, not copyright infringement.
And, interestingly, the court did find *that AT&T owned the intellectual
property*    — i.e., >>the core ideas<< which made UNIX so powerful and
unique.  However, the moment the ACM paper was published, in July 1974, or
Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
secret.


>

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[steve jenkin via TUHS]

> On 21 Sep 2025, at 07:13, Clem Cole via TUHS <tuhs@tuhs.org> wrote:
> 
>   However, the moment the ACM paper was published, in July 1974, or
> Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> secret.

For those like me that missed this textbook:

Full text on Internet Archive, 485 pp
	<https://archive.org/details/DesignUNIXOperatingSystem/mode/2up>

Q: 
Bach in his Preface (p10) notes the book is based on an internal
Bell Labs course he gave, including exercises.

He also notes the two special issues of BSTJ 1978/1984 on UNIX.

Did he have to get clearance to write / publish the book
from Bell Labs management: I don’t know their policies.

Is that correct?

Which seems like a deliberate corporate act to publish
the UNIX  ’trade secrets’.

This is ancient history and irrelevant now
	- the legal fights are over :)

Not trying to prosecute what’s past,
seeking clarity.

--

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Arnold Robbins via TUHS]

Bach used to work at Intel in Haifa.  If he hasn't retired yet,
moshe.bach@intel.com should get to him, if you wish to ask.

A few years back when I was also working at Intel, I got him
to autograph my copy. :-)

FWIW,

Arnold

steve jenkin via TUHS <tuhs@tuhs.org> wrote:

>
>
> > On 21 Sep 2025, at 07:13, Clem Cole via TUHS <tuhs@tuhs.org> wrote:
> > 
> >   However, the moment the ACM paper was published, in July 1974, or
> > Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> > secret.
>
> For those like me that missed this textbook:
>
> Full text on Internet Archive, 485 pp
> 	<https://archive.org/details/DesignUNIXOperatingSystem/mode/2up>
>
> Q: 
> Bach in his Preface (p10) notes the book is based on an internal
> Bell Labs course he gave, including exercises.
>
> He also notes the two special issues of BSTJ 1978/1984 on UNIX.
>
> Did he have to get clearance to write / publish the book
> from Bell Labs management: I don’t know their policies.
>
> Is that correct?
>
> Which seems like a deliberate corporate act to publish
> the UNIX  ’trade secrets’.
>
> This is ancient history and irrelevant now
> 	- the legal fights are over :)
>
> Not trying to prosecute what’s past,
> seeking clarity.
>
> --

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Rob Pike via TUHS]

I barely knew what any official Bell Labs policy was, it was all pretty
informal and you just asked for permission when it seemed the right thing
to do. But there was a story that someone, probably a physicist, wanted to
write a book and management said it was OK but they would take the
royalties. This caused two changes: the physicist left and wrote the book,
and management decided it was OK to write a book and keep the royalties
provided you asked first and got permission, which presumably depended
somewhat on performance and indirectly on the potential value of the
publication for PR.

-rob


On Sun, Sep 21, 2025 at 11:11 AM steve jenkin via TUHS <tuhs@tuhs.org>
wrote:

>
>
> > On 21 Sep 2025, at 07:13, Clem Cole via TUHS <tuhs@tuhs.org> wrote:
> >
> >   However, the moment the ACM paper was published, in July 1974, or
> > Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> > secret.
>
> For those like me that missed this textbook:
>
> Full text on Internet Archive, 485 pp
>         <https://archive.org/details/DesignUNIXOperatingSystem/mode/2up>
>
> Q:
> Bach in his Preface (p10) notes the book is based on an internal
> Bell Labs course he gave, including exercises.
>
> He also notes the two special issues of BSTJ 1978/1984 on UNIX.
>
> Did he have to get clearance to write / publish the book
> from Bell Labs management: I don’t know their policies.
>
> Is that correct?
>
> Which seems like a deliberate corporate act to publish
> the UNIX  ’trade secrets’.
>
> This is ancient history and irrelevant now
>         - the legal fights are over :)
>
> Not trying to prosecute what’s past,
> seeking clarity.
>
> --
>

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Theodore Ts'o via TUHS]

On Sat, Sep 20, 2025 at 05:13:45PM -0400, Clem Cole wrote:
> That said, in the BSDi case, the hacker community got it wrong.  AT&T went
> after BSDi/UCB under the trade secret claim, not copyright infringement.
> And, interestingly, the court did find *that AT&T owned the intellectual
> property*    — i.e., >>the core ideas<< which made UNIX so powerful and
> unique.  However, the moment the ACM paper was published, in July 1974, or
> Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> secret.

So inquiring minds want to know.  When was the first date that Unix
was distributed outside of Bell Labs, and when was the first license
which included the assertion that it was a trade secret?

According to Wikipedia ("which is never wrong"),

   In 1975, the first source license for UNIX was sold to Donald
   B. Gillies at the University of Illinois Urbana–Champaign (UIUC)
   Department of Computer Science.[27]

Note that 1975 is *after* the publication of the CACM paper.

There are hints that the Unix source code was shared before the first
license, which makes it even worse.  With copyright, without a
license, you can't give it to anyone else, and you probably only use
it because the person who gave it to you (if they had the authority to
do so) could be construed to have given you an implied license to use
it.

But with a Trade Secret, it can only be protected if whenever you
share it with someone outside of your organization, they must have
signed an NDA, and the protection of the trade secret is if that
person makes an unauthorized disclosure, (a) it's no longer protected,
and (b) you can sue that person into oblivion.  But once it's been
disclosed (say, Rich Salz uploads it to Usenet from a public phone),
if you can prove that it was Rich who did the dirty deed, you could
sue and take away all of his assets, but the trade secret is gone at
that point.

(After 2016, the Defend Trade Secrets Act does allow courts to order
ex-parte seizure of property to preven the dissemination of a trade
secret, but it's only under very restrictive situations, and it seems
to be mostly involve the situation where Alice has signed an NDA
promising to Bob that she won't some trade secret information, but
then Alice gives some physical object, such as a hard drive,
containing that information to Charlie.  In that case, Bob can ask the
court for an ex-parte seizure, if (a) Bob can describe with reasonable
particularity what is to be seized and where it located, (b) not
publicize the requested seizure, and (c) provide security for any
damages the third party might suffer if the court later determins that
the seizure was wrongfully granted.  So that's quite narrow, and if
the trade secret is located on thousands of Usenet servers all over
the world, the court is not likely going to give an order to Federal
Marshals to seize the hard drives from all of the Usenet servers in
order to prevent trade secret from being disseminated.  :-)

The bottom line is that if Bell Labs had *ever* distributed the
information to third parties without an NDA before trying to claim
that the methods and concepts of Unix were a "trade secret", it simply
was neer going to fly.  And to the extent that Bell Labs had
distributed Unix source code to MIT without the trade secret clause,
it was also doomed --- which is probably why AT&T wasn't willing to
tell third parties like say, Digital, that MIT had a valid Unix
license, since acknowledging that MIT had a valid license would have
given away the game once it became clear that it didn't have the trade
secrets clause.  And if students at MIT weren't required to sign an
NDA, any communications they had about how Unix worked would have
invalidate any of those concepts as being under the trade secret.

The bottom line is that trying to use Trade Secre was unbelievably
stupid, and suggests that either (a) Bell Labs and AT&T Lawyers were
incompetent, or (b) they weren't aware of prior dissemination of the
information that they were trying to claim were trade secret.  I
suspect (b) is much more likely.  Perhaps they never read the Unix
CACM paper.  :-)

It's also not surprising that hacker community got it wrong, because
it was such an insane and stupid legal tactic!

							- Ted

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Jonathan Gray via TUHS]

On Sun, Sep 21, 2025 at 08:27:46PM -0400, Theodore Ts'o via TUHS wrote:
> On Sat, Sep 20, 2025 at 05:13:45PM -0400, Clem Cole wrote:
> > That said, in the BSDi case, the hacker community got it wrong.  AT&T went
> > after BSDi/UCB under the trade secret claim, not copyright infringement.
> > And, interestingly, the court did find *that AT&T owned the intellectual
> > property*    — i.e., >>the core ideas<< which made UNIX so powerful and
> > unique.  However, the moment the ACM paper was published, in July 1974, or
> > Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> > secret.
> 
> So inquiring minds want to know.  When was the first date that Unix
> was distributed outside of Bell Labs, and when was the first license
> which included the assertion that it was a trade secret?
> 
> According to Wikipedia ("which is never wrong"),
> 
>    In 1975, the first source license for UNIX was sold to Donald
>    B. Gillies at the University of Illinois Urbana–Champaign (UIUC)
>    Department of Computer Science.[27]

"The first educational licence was granted, in October 1973, to
Columbia University
...
The Children's Museum in Boston was the first non educational recipient
of UNIX in October 1973"
Pirzada's thesis, p 47

"In January 1974, a Version 4 tape was delivered and Unix was installed
by graduate student Keith Standiford."
McKusick - Twenty Years of Berkeley Unix
https://www.oreilly.com/openbook/opensources/book/kirkmck.html

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Jonathan Gray via TUHS]

On Mon, Sep 22, 2025 at 11:05:31AM +1000, Jonathan Gray via TUHS wrote:
> On Sun, Sep 21, 2025 at 08:27:46PM -0400, Theodore Ts'o via TUHS wrote:
> > On Sat, Sep 20, 2025 at 05:13:45PM -0400, Clem Cole wrote:
> > > That said, in the BSDi case, the hacker community got it wrong.  AT&T went
> > > after BSDi/UCB under the trade secret claim, not copyright infringement.
> > > And, interestingly, the court did find *that AT&T owned the intellectual
> > > property*    — i.e., >>the core ideas<< which made UNIX so powerful and
> > > unique.  However, the moment the ACM paper was published, in July 1974, or
> > > Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> > > secret.
> > 
> > So inquiring minds want to know.  When was the first date that Unix
> > was distributed outside of Bell Labs, and when was the first license
> > which included the assertion that it was a trade secret?
> > 
> > According to Wikipedia ("which is never wrong"),
> > 
> >    In 1975, the first source license for UNIX was sold to Donald
> >    B. Gillies at the University of Illinois Urbana–Champaign (UIUC)
> >    Department of Computer Science.[27]
> 
> "The first educational licence was granted, in October 1973, to
> Columbia University
> ...
> The Children's Museum in Boston was the first non educational recipient
> of UNIX in October 1973"
> Pirzada's thesis, p 47
> 
> "In January 1974, a Version 4 tape was delivered and Unix was installed
> by graduate student Keith Standiford."
> McKusick - Twenty Years of Berkeley Unix
> https://www.oreilly.com/openbook/opensources/book/kirkmck.html

Pirzada's use of 'license' may be wrong here.

"Several universities contacted Bell Labs and received copies of the
Fourth Edition. Agreements were signed not to disclose the source code,
but no licenses were in use at this point."
Don Libes & Sandy Ressler - Life with Unix, p 7

[TUHS] Re: Trade Secrets and Copyrights [was History of cal(1)]

[Clem Cole via TUHS]

On Sun, Sep 21, 2025 at 8:27 PM Theodore Ts'o <tytso@mit.edu> wrote:

> So inquiring minds want to know.  When was the first date that Unix
> was distributed outside of Bell Labs, and when was the first license
> which included the assertion that it was a trade secret?
>
Columbia had the first.   Lou Katz was >>external<< user 1 of Fourth
Edition [Doug wins the awards for internal use].  I'd have to ask Lou what
the date was, but I have always thought it was soon after Oct'73 SOSP
(which redated the July CACM paper).





>
> According to Wikipedia ("which is never wrong"),
>
>    In 1975, the first source license for UNIX was sold to Donald
>    B. Gillies at the University of Illinois Urbana–Champaign (UIUC)
>    Department of Computer Science.[27]
>
Interesting use of the words "sold" -- I wonder why .  I had thought the
first commercial license was for Rand.

>
> Note that 1975 is *after* the publication of the CACM paper.
>
> There are hints that the Unix source code was shared before the first
> license, which makes it even worse.
>
That is the first time I have ever heard that.   Do you have a source?

>
> But with a Trade Secret, it can only be protected if whenever you
> share it with someone outside of your organization, they must have
> signed an NDA, and the protection of the trade secret is if that
> person makes an unauthorized disclosure, (a) it's no longer protected,
> and (b) you can sue that person into oblivion.

I agree that your description of using an NDA is the legal
interpretation/practice.  But I do wonder if it was the same way in the
70s.  Remember also that AT&T is working under the 1956 consent decree that
requires, in return for having a monopoly on the phone business,
the corporation to "make its IP available to interested parties under
reasonable licensing terms."  The transistor is, of course, the best
example of that — and AT&T/WE hardly made the kind of money that RCA, GE,
TI, *et al *made creating transistors.



> ....
> The bottom line is that if Bell Labs had *ever* distributed the
> information to third parties without an NDA before trying to claim
> that the methods and concepts of Unix were a "trade secret", it simply
> was neer going to fly.

Well, I agree that trying to call it a trade secret after so many of us had
been taught the techniques in school seems silly.   And I never
understood how that claim could be made.   But I'm not sure that an NDA was
required when they started.  >>As I understand it<< the use of an NDAs
really started to become more the norm only in the late 1970s.

As I mentioned, we were warned about the AT&T copyright and its license,
which is why the CMU lawyers had us sign the sublicense if we took the OS
course.   But there was never anything associated with a NDA.  I did not
even become familar with the term until a few years after I graduated.



> And to the extent that Bell Labs had
> distributed Unix source code to MIT without the trade secret clause,
> it was also doomed --- which is probably why AT&T wasn't willing to
> tell third parties like say, Digital, that MIT had a valid Unix
> license,

Al Arms and the folks at AT&T patent and licensing would not verify anyone
having a license.  That was not an MIT-specific thing.  This is why we all
sent a copy of the signature page for the license to another site before
they would send you the code.   The original "UNIX User Group" and Mel and
Lou set up (which became USENIX) was invitation-only.  That's why Ken put
Mel's address in the V6 kit and told you to contact Mel.   To be invited,
you had to send Mel a copy of your signature page.



>
> The bottom line is that trying to use Trade Secre was unbelievably
> stupid, and suggests that either (a) Bell Labs and AT&T Lawyers were
> incompetent, or (b) they weren't aware of prior dissemination of the
> information that they were trying to claim were trade secret.  I
> suspect (b) is much more likely.  Perhaps they never read the Unix
> CACM paper.  :-)
>
Well, that's stronger than I would state.   The AT&T legal team was aware
of the disclosures and had been required to license and disclose them via
the 1956 consent decree.   As was explained to me, that was the basis of
their claim.  It was there IP.  They owned it (and still did), but at the
time, the law required them to share it, which was a bit of a catch-22 for
them.  Thus, the open question became "could they still call the IP a trade
secret after having shared it?"  The court said no.  Anything they invented
after Judge Green did not have to be shared, but before then, which UNIX
certainly was.

So, the interesting question is between the time of the 1956 decree and
Judge Green: could AT&T realistically have had any trade secrets if it were
required to license its IP?


> It's also not surprising that hacker community got it wrong, because
> it was such an insane and stupid legal tactic!
>
Again, as I said, we have spent all of the time being concerned about
protecting AT&T's license and the copyright to their example implementation
of that IP.