Unix System Laboratories Inc has suffered a surprise setback in its suit against Berkeley Software Design Inc for copyright infringement and misappropriation of trade secrets. US Federal Judge Dickinson Debevoise earlier this month denied Unix Labs’s pre-trial motion for a preliminary injunction halting distribution of any of Berkeley Software’s BSD/386 code. The decision lifts restrictions that were placed by the court on the tiny company several months ago that forbade it from distributing advance copies of BSD/386 code for beta testing, or production software. The company now intends shipping production code for the first time this week, saying it has hundreds of orders. Unix Labs made its motion based solely on its copyright claims, anticipating a victory at the upcoming trial and a court-ordered permanent injunction. The court denied the motion based on its finding that Unix Labs has no valid copyright on 32V Unix, an early 1978 version of the software from which the University of California at Berkeley’s Networking Release 2 code is derived. Berkeley Software’s BSD/386 in turn derives from Net2 and the court found that Net2 was in fact derived from 32V. Unix Labs is appealing the judge’s decision, claiming that he is mistaken on a matter of law. Although a very early copy of 32V may have carried a copyright notice, it was removed based on the then-prevailing legal opinion that a copyright notice implied general circulation which, if true, would taint 32V’s trade secret protection. Unix Labs maintains that 32V was a limited publication, further restricted by contractual restraints and subject to limited publication law and therefore did not require a copyright notice. The judge however found that it was published, and it is this ruling that Unix Labs is contesting. The court was not asked to rule on any of Unix Labs’s trade secrets claims, according to the company’s chief counsel, Sandy Tannenbaum. Whether or not Unix Labs is successful in its appeal, it believes it can still win its case on its other claims of misappropriation, misrepresentation, trade mark infringement and breach of contract.
