614 lines
26 KiB
Plaintext
614 lines
26 KiB
Plaintext
Date: Thu, 5 Aug 93 19:51:51 PDT
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Reply-To: <surfpunk@versant.com>
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Return-Path: <cocot@versant.com>
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Message-ID: <surfpunk-0093@SURFPUNK.Technical.Journal>
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Mime-Version: 1.0
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Content-Type: text/plain
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From: surfpunk@versant.com (snyfr naq zvfyrnqvat fgngrzragf)
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To: surfpunk@versant.com (SURFPUNK Technical Journal)
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Subject: [surfpunk-0093] UNIX: UCB bites back ( "PRAYER FOR RELIEF" )
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I'd like to hear Joel Linzner, Attorneys for Plaintiff,
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read this to the judge and maintain a straight face .... strick
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________________________________________________________________________
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________________________________________________________________________
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To: surfpunk@versant.com
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Subject: UCB bites back
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Organization: COAST, Department of Computer Sciences, Purdue Univ.
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Date: Thu, 05 Aug 93 17:41:45 -0500
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From: Gene Spafford <spaf@cs.purdue.edu>
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From: gwh@soda.berkeley.edu (George William Herbert)
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Newsgroups: comp.unix.bsd
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Subject: UCB Sues USL
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Date: 5 Aug 93 00:49:20 GMT
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Organization: University of California, Berkeley
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Lines: 425
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This from the bsdi.com ftp site, (bsdi-info/usl/930610.ucb_complaint)
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--
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JOEL LINZNER
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CARLA J. SHAPREAU
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CROSBY, HEAFEY, ROACH & MAY
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Professional Corporation
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1999 Harrison Street
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Oakland, California 94612
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Telephone (510) 763-2000
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JAMES E. HOLST
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JOHN F. LUNDBERG
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MARY E. MacDONALD
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University of California
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300 Lakeside Drive, 7th Floor
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Oakland, California 94612-3565
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Telephone: (510) 987-9800
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Attorneys for Plaintiff
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The Regents of the University of California
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SUPERIOR COURT OF CALIFORNIA - COUNTY OF ALAMEDA
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THE REGENTS OF THE UNIVERSITY OF CALIFORNIA
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Plaintiff,
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v.
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UNIX SYSTEM LABORATORIES, INC.,
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Defendant.
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No. 717864-3
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COMPLAINT
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Plaintiff The Regents of the University of California
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("the University") alleges as follows:
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1. Defendant Unix Systems Laboratories, Inc. ("USL")
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is a Delaware corporation with its principal place of business in
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Summit, New Jersey. USL is a majority-owned subsidiary of AT&T engaged
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in the development, manufacture, licensing and sale of computer
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software operating systems and related products and services. The
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University of California is a public trust created under Article IX,
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Section 9 of the California Constitution that is administered by The
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Regents of the University of California.
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FACTUAL BACKGROUND
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2. Commencing in the 1970s, the University began
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developing software named the Berkeley Software Distribution ("BSD").
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The BSD releases are a series of Unix-compatible software distributions
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that incorporate leading edge technology and are developed by the
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University of California Berkeley Computer Systems Research Group
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("CSRG").
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3. On or about March 4, 1986, the University and AT&T
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entered into a written license agreement for the use of the
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University's 4.2 BSD and 4.3 BSD computer programs and documentation, a
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copy of the agreement is attached here to as Exhibit A.
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4. On or about May 4, 1989, the University and AT&T
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entered into a written license agreement for the use of the
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University's 4.3 BSD-Tahoe computer programs and documentation, a copy
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of which is attached hereto as Exhibit B. The University's 4.3
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BSD-Tahoe computer programs and documentation were made available to
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USL under the same terms and conditions set forth in the March 4, 1986
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agreement. (The 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe agreements will
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hereinafter be collectively referred to as the "BSD Agreements.")
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5. AT&T licensed, for itself and its subsidiaries,
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the right to use and sublicense the University's BSD software for,
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among other purposes, the development of AT&T's (and subsequently
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USL's) commercial Unix Operating System. The price charged by the
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University for a license to use its BSD software and documentation was,
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and is, a nominal fee to cover the cost of production and shipping of
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the software and related documentation. The University has never
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licensed its BSD software for profit.
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6. The BSD Agreements require that USL give the
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University proper credit and recognition for its use of any part of 4.2
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BSD, 4.3 BSD, and 4.3 BSD-Tahoe in Paragraph 8 as follows:
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Proper Credit and Recognition. In the use of any part of 4.2
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BSD and 4.3 BSD, AT&T will give appropriate credit to the
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University and the Electrical Engineering and Computer
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Sciences Department at the Berkeley Campus of the University
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of California and Other Contributors for their roles in its
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development and will require sublicensees to give such
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credit.
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If AT&T is providing documentation similar to that which is
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provided with 4.2 BSD and 4.3 BSD, notices similar to those
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included in that documentation suffice to satisfy this
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requirement. If AT&T is providing new documentation, this
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requirement will be satisfied if each document includes the
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following statement: 'This software and documentation is
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based in part on the Fourth Berkeley Software distribution
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under license from The Regents of the University of
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California. We acknowledge the following individuals and
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institutions for their role in its development: [insert
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names of individuals and institutions which appear in the
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documentation provided to AT&T as part of 4.2 BSD and 4.3 BSD
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for those portions of said Distribution used by AT&T.]'
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7. In addition, in Paragraph 7 of the BSD Agreements,
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the University granted to AT&T and its subsidiaries the right to
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sublicense 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe to third parties as long
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as AT&T and its subsidiaries required its sublicensees to comply with
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the "Proper Credit and Recognition" obligations contained in Paragraph
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8, referenced above. The University is informed and believes that USL
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has sublicensed 4.2 BSD, 4.3 BSD, and/or 4.3 BSD-Tahoe to sublicensees,
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including, but not limited to Silicon Graphics, Inc., the Santa Cruz
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Operation, Inc., and Intel Corporation, who have failed to give the
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University proper credit and recognition in the following documentation
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as required under Paragraph 8 of the BSD Agreements: Silicon Graphics'
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IRIX User's Reference Manual," Santa Cruz Operation's "Open Desktop
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Administrator's Guide," and Intel's "IBCS2."
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8. On or about November 1, 1989, AT&T assigned and
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transferred its rights to, among other things, System V, Release 4 of
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the Unix Operating System to USL. The University is informed and
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believes that AT&T assigned and transferred its rights under the BSD
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Agreements to USL.
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9. The 4.3 BSD-Tahoe software expressly provides as
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follows:
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Copyright (c) 1982, 1986 Regents of the University of
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California. All rights reserved.
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Redistribution and use in source and binary forms are
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permitted provided that the above copyright notice and
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this paragraph are duplicated in all such forms and that
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any documentation, advertising materials, and other
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materials related to such distribution and use
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acknowledge that the software was developed by the
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University of California, Berkeley.
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USL failed to include the University's copyright notice in its Unix
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System V, Release 4.
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10. Substantial portions (perhaps as much as 50%) of
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the current version of USL's Unix Operating System, "System V, Release
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4," is comprised of the University's BSD code. USL has paid no
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royalties for its use of the University's BSD software, although USL
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currently licenses its Unix Operating System for approximately
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$200,000. Although USL itself states, the Unix Operating System has
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become "one of the most highly regarded computer systems in the world,"
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this is largely the result of BSD software developed by the University
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and its contributors which has been incorporated into USL's Unix
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Operating System. The only form of compensation the University
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required USL to provide (other than the nominal license fee) was credit
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and recognition to the University for its valuable software and related
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documentation. USL failed to provide the University with its due
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credit and recognition under the applicable license agreements.
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FIRST CAUSE OF ACTION
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(Specific Performance Cal. Civ. Code 3384)
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11. The University incorporates by reference the
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allegations set forth in Paragraphs 1 through 10 above, as if set forth
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in full herein.
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12. The consideration given by USL for the
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University's grant of the right to use and sublicense the University's
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BSD software and documentation was, among other things, payment to the
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University of a nominal license fee and the provision by USL of proper
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credit, recognition, and notice to the University whenever USL used the
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University's BSD software and documentation.
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13. The University has performed all conditions,
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covenants, and promises required of it on its part to be performed in
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accordance with the terms and conditions of the BSD Agreements.
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14. USL has failed, and continues to fail, to perform
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the conditions of the BSD Agreements in that USL has failed to give the
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proper credit, recognition, and notice to the University for its use of
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BSD software and related documentation in USL's products as required
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under the BSD Agreements.
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15. USL's widely distributed documentation contains
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portions of 4.2 BSD and/or 4.3 BSD code and documentation but these
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publications fail to provide the University with proper credit,
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recognition, and notice. The following documentation are but a few
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examples of USL's failure to perform its obligations under the BSD
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Agreements:
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a. Advanced System Administration, UNIX SVR4.2;
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attached hereto as Exhibit C are copies of the title page and
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acknowledgement portion of this documentation;
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b. User's Guide, UNIX SVR4.2; attached hereto as
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Exhibit D are copies of the title page and acknowledgement portion of
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this documentation;
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c. System Files and Devices Reference Manual for
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Motorola Processor (for Unix System V Release 4), attached hereto as
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Exhibit E are copies of the title page and acknowledgement portions of
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this documentation;
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d. System V Application Binary Interface, Intel
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i860 Processor Supplement; attached hereto as Exhibit F are copies of
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the title page and acknowledgement portions of this documentation; and
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e. System V Interface Definition, 3rd Edition;
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attached hereto as Exhibit G are copies of the title page and
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acknowledgment portion of this documentation. Exhibit G indicates that
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USL has failed to give the University the credit and recognition it is
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required to provide under the BSD Agreements because the only reference
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to the University are the words "(c) 1985 Regents of the University of
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California."
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16. USL has failed to include the University's
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copyright notice in System V, Release 4 and related documentation.
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17. USL's failure to give the University proper
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credit, recognition, notice for its use and reproduction of BSD
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software and documentation in the development of System V, Release 4
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and related documentation has caused, and continues to cause,
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irreparable injury to the University. USL has caused harm to the
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University's reputation by failing to give the University recognition
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for its academic, cutting-edge developments that have greatly
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contributed to the Unix community's evolution and vitality. The harm
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caused by USL to the University cannot be quantified in monetary
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terms. Moreover, an accurate assessment of damages is far too
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difficult and speculative. If USL fails to provide proper credit and
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recognition to the University, the University seeks an Order
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terminating the BSD Agreements which will require USL to "immediately
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destroy 4.2 BSD, 4.3 BSD, and 4.3 BSD-Tahoe and all copies thereof. .
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.and [USL] shall cease use and sublicensing thereof" as provided in
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Paragraph 2 of the BSD Agreements. For the reasons stated above, the
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University has no adequate legal remedy for its injuries and it,
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therefore, seeks specific performance of USL's obligations under the
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BSD Agreements.
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SECOND CAUSE OF ACTION
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(California Unfair Competition)
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(Cal. Bus. & Prof. Code 17200 and 17203)
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18. The University incorporates by reference the
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allegations set forth in Paragraph 1 through 17 above, as if set forth
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in full herein.
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19. USL's continuing distribution and sale of System
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V, Release 4 of the Unix Operating System (in source and object code
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form), and related documentation, without proper credit, recognition,
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and notice of the University's original work constitutes unlawful,
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unfair, and fraudulent business acts and practices, and unfair,
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deceptive, and misleading advertising within the meaning of California
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Business and Professions Code Section 17200. The acts and practices of
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USL have caused, and are likely to continue to cause, the public to be
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confused and misled as to the origin of the code contained in System V,
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Release 4 and related documentation.
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20. Without injunctive relief, the University has no
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means by which to control USL's dissemination of software and
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documentation which unfairly deprives the University of its due credit
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and which passes off portions of USL's System V, Release 4 and related
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documentation as its own. The University has been, and continues to be
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irreparably harmed by USL's unfair competition. No amount of money
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damages can adequately compensate the University if it is without the
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ability to prevent USL's continued wrongful acts. The University is
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entitled to injunctive relief prohibiting USL from such acts of unfair
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competition. In addition, the University is entitled to an Order
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requiring that USL disseminate corrective notice to USL's licensees and
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the public.
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21. In addition, the University is engaged to recover
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its costs of suit and its attorneys' fees.
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THIRD CAUSE OF ACTION
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(False or Misleading Statements)
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(Cal. Bus. & Prof. Code 17500 and 17535)
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22. The University incorporates by reference the
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allegations set forth in Paragraph 1 through 18 above, as if set forth
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in full herein.
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23. USL's continuing distribution and sale of software
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and documentation that fails to notify USL's licensees, sublicensees,
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and the public that portions of USL's software and documentation
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contain, use, or are based in part on, the Fourth Berkeley Software
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Distribution under license from the University, constitutes false and
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misleading statements within the meaning of California Business and
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Professions Code Section 17500.
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24. USL's false and misleading statements have caused,
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and are likely to cause, the public to be confused, misled, and
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deceived.
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25. USL knew, or in the exercise of reasonable care,
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should have known, that the acknowledgements, notice, and credit
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contained in its System V, Release 4 software and related documentation
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was, is, and continues to be, false and misleading. Notwithstanding
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USL's knowledge of its misleading statements, USL continues to
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distribute and sell the offending software and documentation.
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26. Without injunctive relief, the University has no
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means by which to control USL's false and misleading statements to its
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licensees and the public and has been and will continue to be
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irreparably harmed. No amount of money damages can adequately
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compensate the University if it is without the ability to prevent such
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continued false and misleading statements. The University is entitled
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to injunctive relief prohibiting USL from continuing to make false and
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misleading statements to its licensees and the public. In addition,
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the University is entitled to an Order requiring USL to disseminate
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corrective notice to its licensees and the public.
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27. In addition, the University is engaged to recover
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costs and attorneys' fees.
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FOURTH CAUSE OF ACTION
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(Declaratory Relief)
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28. The University incorporates by reference the
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allegations set forth in Paragraphs 1 and 2 above, as if set forth in
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full herein.
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29. The University seeks a judicial determination that
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it is not in breach of its license agreements with USL for that version
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of the Unix Operating System identified as "UNIX 32V."
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30. UNIX 32V was released by AT&T on or about 1978.
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AT&T granted the University the right to enhance, modify, and improve
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32V and granted the University all ownership rights to such
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enhancements, modifications, and improvements. The University had the
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option to release to the public those enhancements, modifications, and
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improvements to UNIX 32V that did not contain AT&T code or disclose
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AT&T's trade secrets to non-AT&T licensees.
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31. USL contends that the University materially
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breached the UNIX 32V license agreement when the University released
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software called "Net 2" to the public in July 1991. The University
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contends that its release of Net 2 did not materially breach the
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University's license agreement with USL.
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32. There exists a substantial, present, justiciable
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controversy between the University and USL with respect to the parties'
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contractual rights and obligations under the UNIX 32V license
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agreements and related documents.
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33. A judicial declaration is necessary and
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appropriate at this time so that the University and USL may ascertain
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their rights and duties under the applicable license agreements and
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related documents.
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PRAYER FOR RELIEF
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WHEREFORE, the University prays for judgment as
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follows:
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(a) For an Order requiring USL, its agents,
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employees, successors, and assigns and all others in concert and
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privity with it to print corrective advertising, giving the University
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proper credit, recognition, and copyright notice, in all newspapers,
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periodicals, and other publications, in which USL regularly advertises
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the Unix Operating System and related products;
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(b) For an Order requiring USL, its agents,
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employees, successors, and assigns and all others in concert and
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privity with it to distribute corrective notices, giving the University
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proper credit, recognition, and copyright notice, to all of its
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international and national licensees and sublicensees;
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(c) For an Order requiring USL, its agents,
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employees, successors, and assigns and all others in concert and
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privity with it to give the University proper credit, recognition, and
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copyright notice in all future releases of the Unix Operating System
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and related documentation which contain, use, or are based on, 4.2 BSD,
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4.3 BSD, or 4.3 BSD-Tahoe software and related documentation.
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(d) For an Order permanently enjoining USL, its
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agents, employees, successors, and assigns and all others in concert
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and privity with it from making false and misleading statements
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regarding the origin of those portions of System V, Release 4 and
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related documentation that contain, use, or are based on, BSD software
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or documentation and from engaging in unfair and deceptive business
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acts and practices.
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(e) For an Order that the BSD Agreements will
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terminate and USL will be requited to immediately destroy 4.2 BSD, 4.3
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BSD, and 4.3 BSD-Tahoe and all copies thereof and USL shall cease use
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and sublicensing thereof as provided in Paragraph 2 of the BSD
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Agreements if USL fails to provide proper credit and recognition to the
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University.
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(f) For a declaration that the University did not
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breach the UNIX 32V license agreements when the University released Net
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2 to the public.
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(g) For an Order awarding the University costs of
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suit herein incurred;
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(h) For an Order awarding the University
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reasonable attorneys' fees pursuant to contract and statute; and
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(i) For such other further relief as the court
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may deem just and equitable.
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DATED: June ___, 1993 CROSBY, HEAFEY, ROACH & MAY
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Professional Corporation
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By:
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Joel Linzner
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Attorneys for Plaintiff
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The Regents of the University
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of California
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________________________________________________________________________
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________________________________________________________________________
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The SURFPUNK Technical Journal is a dangerous multinational hacker zine
|
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originating near BARRNET in the fashionable western arm of the northern
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California matrix. Quantum Californians appear in one of two states,
|
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spin surf or spin punk. Undetected, we are both, or might be neither.
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________________________________________________________________________
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Send postings to <surfpunk@versant.com>,
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subscription requests to <surfpunk-request@versant.com>.
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________________________________________________________________________
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________________________________________________________________________
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ZyXEL-modems mlm-faq
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acorn model-railroad-faq
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active-newsgroups moderator-list
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address-book motif-faq
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alt-buddha-short-fat-guy msdos-archives
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alt-config-guide msdos-programmer-faq
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alt-hierarchies music
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alt-sex net-anonymity
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alt-sources-intro net-privacy
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amiga network-info
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animation-faq neural-net-faq
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anime newprod
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apple2 news-announce-intro
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atheism news-answers
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aviation northern-exposure-faq
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books pdial
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compression-faq pratchett
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computer-virus-faq pro-wrestling
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crafts-historical-costuming pyrotechnics-faq
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crafts-textiles quotations
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cryonics-faq rec-autos
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