A few years back a major publisher wanted it, but decided that since the settlement was final, BSDI was about dead, and interest on the wain, thought it was too late. Double think.

Your telling is very much like what was lived, which was what struck me about it. None of the disinformation that flooded the net in this area. Why comment on something when you'd get flamed for retelling what happened, by advocates for a "side", all who were never even there? Or worse, get in head of the pin arguments with jerks trying to win debating points over non-existant history.

Mostly I've watched variations on this story before and after BSDI/USL, and my fear for the effective use of open source was the "lawless" attitudes and "power moves" (often incompetent), plus the ignorance of rational provenance, leaving the door open for challenges. This, irrespective of "if" motive or action was wrong.

My limited understanding of the law leads me to fear that nonsensical and legitimate claims become nearly indistinguishable once into the system. Which is why I always advocated design and review
process that relied on novel work, documented widely, and sought to find the conflicts first (see Open Software Development in the Real World, June 2003).

Note that the developers of 386BSD were never a part of the USL/BSDI legal action at all. Had we had our way, it would never have happened. The great irony is that those who insisted on this path doomed BSD to marginalism at the moment of their "glory". But they did so want to be the big fish in the smaller pond.

These projects often start with noble motives. With BSD at Cal, yes, it got thrown out the cynical window. It damaged BSD, Cal, and many others. BSD no longer is a part of Cal. It colored a great project. The same is true again.

Where the problem comes is in departure from accepted, legit development practise. In law, one constructs competing stories for which explanation is better. Often neither is true. So your ability to guess outcome may not depend on your interpretation of law, but how the case works out. The BSDI/USL one was similarly flawed - but it was the better legal talent that prevailed.

Many of the practises I've observed from a distance with open source systems leave much for lawyers to work with. The developer can control
this to a great degree. But remember, you can be "controlling" and "slowing things down" by doing the correct process from the start that makes this game hard for the would-be litigant.

History will be written by those who win at the game, not by those that play it fairly.

As usual there is so much more here than meets the eye.

Some news outlets like Groklaw and Salon continue to lie about the people involved in the USL v BSDI case. For example here is what Salon magazine says in their their glossary:

BSDi: A company formed by ex-members of the CSRG to create a proprietary version of BSD. In February, BSDi merged with FreeBSD.

This sort of outright lie is understandable. To consider the true story as it really unfolded might mean that a lot of our so-called open source community leaders were actually a bunch of greedy unethical lying bastards. Worse still, that they enlisted others to help them slander some innocent associates because they dared to tell the truth about them. That's why Salon articles say things like: "Open-source pioneers Bill and Lynne Jolitz may be the most famous programmers you've never heard of." and claim "Bill and Lynne Jolitz are charming and forthcoming."

I'm really surprised that so many people still haven't stumbled acrossed this story. here is some chronology:

On March 19, 1992 David Harris posted "Jolitz: The Road Not Taken" on the USENET, and said, "I think this story deserves coverage by computer journalists." Maureen O'Gara took up his offer.

Bostic and McKusick issued a joint denial from their place of employment - the CSRG. So did Karels from his new place of employment - BSDI. Even Kolstad Karel's new boss at BSDi chimed in.

Then in April 1992 USL decided to sue BSDI, and all hell broke loose. Who ever had been lying faced the propect of testifying under oath.

The first party to request a protective order in USL v BSDI was the counsel for BSDI. Here's the docket sheet entry:

7/20/92  14   AFFIDAVIT by Leslie A. Fithian in support of [12-1] motion for protective order [12-2] motion to compel discovery (jd)                 [Entry date 07/24/92]

Maureen O'Gara tried to lift the veil of secrecy back then too. She wrote about it in the August 3-7, 1992 issue of UNIGRAM X:

"According to USL, the school effectively rejected a proposal for a full comparison of Berkeley versus USL code by  unbiased third parties by demanding that the evaluation be limited only to USL-specified snapshots and by selecting as arbiters for its side members of the Computer Systems Research Group whose credentials, USL claims, were already tainted. CSRG, in what appears to be a form letter over the signature of CSRG team member Marshall Kirk McKusick, made written representations to BSDI on April 30, 1991 that Berkeley software "may be freely redistributed...." and "requires no previous licence, either from AT&T or The Regents of the University of California." The university reportedly picked McKusick as one of its evaluators.

Had that proposal been acted on, McKusick, CSRG senior programmer and past president of Usenix, would have found himself in another conflict of interests since he is believed to be a secret a director of BSDI. BSDI, which the USL suit suggests is in collusion with CSRG, declines to publicly identify any of its founders or investors declaring such information "proprietary" on the basis that BSDI is a closely held company. No names appear on BSDI's papers of incorporation except the company's nominal president Rick Adams who was described to Unigram last week by Donnalyn Frey, BSDI's spokesman, as merely a figurehead, soon to be replaced when BSDI completes its current search for a chief executive. Adams, she said, is actually the president of UUNet Technologies, a long-established company currently distributing BSD/386. Donnalyn, well-known as Usenix's erstwhile spokesman, should know since she is in fact Mrs Rick Adams. Besides McKusick, there are other ties between CSRG and BSDI. According to an April filing with the Virginia Commission on Corporations, where BSDI is headquartered, CSRG senior programmer Keith Bostic and former CSRG mainstay Mike Karels, the acknowledged architect of the university's 4.3 BSD release, are also directors of BSDI. BSDI describes Karels simply as an employee, claiming he joined the company after BSD/386 was established. Another director is Don Seeley, an employee of UUNet Technologies, the supplier of UUNet. Clearly USL will argue that CSRG staff gave themselves permission to commercialise the system and will doubtless note a violation of the university's established code of ethics which requires university personnel with a financial interest in a university decision to disqualify themselves. BSDI, meanwhile, is attempting to try the case in the court of public opinion. The week before last it put the full text of the initial complaint (but not the expanded suit) on UUNet ostensibly because so many were asking to see the exact wording.

There was actually a state law behind the University's policies. On August 19, 1992 the President sent a letter to the  Chancellors and Laboratory Directors announcing a new ""Policy on Copyright Ownership" which superseded the University's 1975 Copyright Policy. The new policy was contained in an attachment named after a large N.J. firm: http://www.ucop.edu/ucophome/coordrev/policy/8-19-92att.html

Maureen O'Gara also shed some light on the Bill Jolitz saga:

Besides Berkeley Software Design Inc's BSD/386 operating system, there is another body of 386 code making the rounds. That code got started in conjunction with the same University of California lab that BSDI's did and traces its roots first to 4.3BSD Tahoe and ultimately to the same Net2 subset source. This code is confusingly named 386BSD after the original 386BSD project kicked off in the university's Computer Systems Research Group in 1989. The man who says he named both pieces of software is former 386BSD project leader and principal developer of BSD 2.8 and 2.9, Bill Jolitz. Jolitz reportedly mortgaged his house to start the initial 386BSD project and subsequently finished it in his own time. The code and its rationale were published over the course of a year in Dr Dobb's Journal beginning in January of 1991. It was also picked up by Dr Dobbs' sister publication Unix Magazin in Germany. The full code has been available on InterNet for the last two months and was to go on CompuServe last week, according to Dr Dobbs' editor Jonathan Erickson. He estimates that 386BSD is currently in the hands of 100,000 people. Jolitz, interviewed by Unigram.X last week, says that his 386BSD, at least in its initial versions, was encumbered. He also says that 386BSD is the basis of BSDI's BSD/386 which he worked on in 1991 at CSRG initially under the financial sponsorship of UUNet Technologies. Last summer his cheques started coming from BSDI. He claims he was never officially hired by BSDI and signed no employment contract with the firm, which he believes is the brainchild of UUNet chief Rick Adams and former CSRG staffer Mike Karels who was best man at Jolitz's wedding. However, Jolitz was apparently crucial to the project since none of BSDI's principals, alias CSRG's staffers, knew much about 386 Berkeley and couldn't maintain it. 386BSD was originally intended to be "a university curiosity," Jolitz said, a non-commercial, non-industrial strength way for students, facility and researchers to have access to Berkeley code on inexpensive machines. Increasingly through last year it became apparent that what CSRG wanted was "basically the same thing as BSDI:" an unencumbered commercial system. Ultimately, he says, he opposed it since it would mean terminating the 386BSD project, an action CSRG has taken, as well as having him renege on a published promise to produce freely accessible 386 code. He broke with BSDI in November, he says, but not before Usenix mysteriously refused to allow him to present a paper on his 386 work and BSDI offered to cut him in - in return for the title to his house. The first tack he regards as a way for CSRG/BSDI to limit competition. The second tactic he regards as an attempt to keep him in line. He says he attempted to bring what was happening to the attention of university authorities such as CSRG's faculty overseer Susan Graham and its Office of Technology Licensing but was sluffed off. He claims the university is guilty of "incompetent stewardship." He subsequently received letters from CSRG and university counsel claiming that all the work he had contributed to Berkeley since Net2 was "University proprietary," a phrase he had never heard before. In November he was asked to destroy all his own work and anything in his possession having to do with Berkeley or 386. He says he complied and rewrote the current 386BSD Release 0.0 from scratch. He says he receives no money from BSDI for his code though he alleges BSDI has told its customers that he does. Jolitz does not believe Net2 is encumbered."

In fact UUNet owned the trademark on BSD. O'Gara and the Jolitz family were immediately pilloried and made out to be delusional or just plain liars by CSRG's Bostic, and a few other closet employees or beneficiaries of Rick Adams various enterprises. These included Chris Torek, Paul Vixie, and Jordan K. Hubbard. Things quickly turned into a bitter fued. Some of the USENET posts are here.

Jolitz started working mostly alone, because he had been made to recode things twice before when he had been relying on others that he should have been able to trust.

The USENIX UUNet experiment was founded in 1987. Here is a link to Peter Salus board meeting minutes with several entires about setting up the company with a loan, continuing loan guarantees, and finally instructions to "confer  with  the  Association's  lawyer  concerning  UUNET's independent, non-profit incorporation and other legal matters". According to Adams own account, UUNet was in talks with MFS six years later about a buyout offer during the BSDI trial. MFS finally purchased UUNet for two billion dollars. MFS in-turn ended up as part of MCI/Worldcom (which isn't famous for either good accounting or ethical conduct).

I pointed out a number of times in my comments at Groklaw that IBM was serving out the sunset provisions of a 40-year government imposed consent decree from 1997 until 2002. Regardless, they couldn't have enter into the joint Trillian Linux development deal with market competitors like Intel, HP, SGI, and etc. without filing with the FTC and DOJ under the National Cooperative Research Act of 1984 ("NCRA") and the National Cooperative Research and Production Act of 1993 ("NCRPA").

Based upon that sort of thing I personally find the notion that IBM CEO Sam Palmisano and IBM VP and top Linux evangelist Irving Wladawsky-Berger had no e-mails, reports, and documents about their Linux decisions pretty far-fetched. Their Peace, Love, and Linux campaign claimed they spent $1 billion promoting and developing Linux. IBM spokesmen have since claimed the company has recouped most of those costs. Who authorized the spending, and why? Where did they keep the accounting of the budget and revenues, on a beer mat?

The Hagley Museum keeps the IBM Antitrust Suit Records from 1969-1980. In one instance IBM intentionally got itself cited for contempt over witholding materials during discovery. That was in "Series VI. International Business Machines Corporation v. United States and IBM and Cravath, Swaine & Moore v. U.S.,1973."

Here is the museum's synopsis "This case, brought in the U.S. Court of Appeals, illustrates some of the legal complexities involved in the protracted litigation of U.S. v. IBM. The appeal involved one of the pretrial orders of the court dealing with documents for which IBM claimed privilege. In order to obtain an evaluation of IBM's claims of privilege, the company and its outside counsel, the New York law firm of Cravath, Swaine & Moore, refused to release certain subpoenaed files. This action provoked a contempt citation, which allowed IBM and Cravath, Swaine & Moore to air its position on the claims of privilege [on appeal].

Perhaps it may be time for a book on this and the origins of the whole open source OS debacle.

Maureen O'Gara is an excellent journalist. If anything, it's "spin" that annoys her. With CSRG/BSDI, she could "smell" the story.

Now, according to Mr Yarro, it's a wonder Ms Kreidel can recite any of these particulars because Mr Noorda told him time and again - "emphatically" in fact - that he didn't want his kids to know anything about Canopy's operations or to be involved in the company or its management and that they weren't going to inherit Canopy. The stock the Noorda Family Trust owns in Canopy is supposed to go to charity.

Yarro says Ms Kreidel would often ask him about Canopy, the state of Mr Noorda's health and about the Noordas' other holdings and their estate. He says he "politely provided general information similar to what could be obtained by visiting the Canopy web site."

Canopy, however, paid Ms Kreidel an annual salary of $48,000 plus health insurance for her family even though she had "no substantive involvement" in the company, Yarro says. She was also put on the board of MTI, another Canopy company, from which she got cash and stock.

However,according to MTI's 10Ks, Val Kreidel has been a director of that Canopy child company since 2000 and served on the board with Yarro, Raimondi and (surprise) Ray Noorda. Seems he wanted her involved to that extent. Seems as a director of a subsidiary as well as a daughter, she might have some interest in what Yarro was up to.

She just blithely printed whatever crap Yarro fed her. A nose for news isn't enough, there's such a thing as journalistic ethics. I can't see she has any.

I sometimes get the impression that groklaw is more about defending IBM than protecting linux or beating SCO.

Take this paragraph from SCO's renewed motion to compel:

In addition, IBM has improperly refused to produce Rule 30(b)(6) witnesses on several appropriate topics. For example, IBM refuses to provide any witness to testify about the nature and extent of IBM's contributions to Linux -- a core issue in this case. IBM's intransigence thus compounds its withholding of documents and proper interrogatory responses to SCO's prior discovery requests that seek similar, critically relevant information.

IBM has refused to provide any witness to testify about contributions to linux?  If that is true, that seems a little ludicrous to me.  I mean, they want a CC judgement saying their linux involvement is ok, but they won't provide any witnesses that go to the heart of the case?

If that is true, how can any competent journalist, lawyer, or paralegal for that matter decide to just ignore it?

While as a techie and F/OSS advocate I have *enormous* respect for IBM, they have a storied and colorful history.  There are many good reasons why some people may have a bias against IBM.

Of course all ill that can be said against IBM can be said against MS - they've compiled their own list sins against humanity which rival's IBM's in *much* less time than IBM has been around.  Without the (to me) mitigating factor (again, from my POV) of delivering high quality technical innovation and demonstrated prowess.

Samples:
"SCO and IBM met in federal court in Utah again Tuesday for another go-round over the discovery that IBM hasn't produced in SCO's $5 billion lawsuit against it."

"At the hearing, one of SCO's lawyers, another young thing from Boies, Schiller & Flexner whose footwork was smooth enough to impress even Groklaw's IBM-dazzled observers, mentioned the little matter of SCO's days-old Third Amended Complaint, which, alas, is under seal reportedly because it's based on some e-mail that turned up during discovery that IBM now claims is privileged though there's supposedly no hint of attorney-client communication about it."

"and one of the supposedly compromising IBM e-mails - that SCO just happened to read out loud in court the other day - suggests that IBM was conscious that it had overstepped the bounds of its Project Monterey contract with SCO, which was intended to produce only a version of AIX for Intel's Itanium chip (CSN No 564)."

"See, IBM - having produced one single PowerPoint presentation - contends that there are no other e-mails, memos, business plans or presentations about Linux anywhere in the joint, evidently proving that not only can elephants dance, but that they really do have good memories."

After this piece, O'Gara asks the court to unseal documents. It's obvious that it is IBM's that she is interested in seeing and using for Public Relations pieces like the gem quoted.

The overall tone of the article read as a whole tends to be favourable to SCO and openly hostile to IBM, including suggesting that their confidential materials shouldn't be confidential.

None of her aspersions, suspicions or factoids are directed at SCO.