Portion of Berkeley countersuit against USL Full text available on request

[David Farber <farber@central.cis.upenn.edu>]

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.