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Sci/Tech Software
Sci/Tech: ACCESS Confirms Zeta BeOS Version Infringing
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Wednesday, 04 April 2007 Written by Alexander G. Rubio
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When Be Inc., the creators of the BeOS operating system, went the way of most computer companies through the history of this volatile industry in 2001, and went under the hammer and to Palm Inc. (later PalmSource and ACCESS), the users of their software were left stranded.

With an Open Source version of the operating system, Haiku, only a distant dream at the time, and time and hardware leaving the OS behind. These users and enthusiasts needed an upgrade path. That was seemingly supplied by a company called YellowTAB and their Zeta version of BeOS.

But despite muted protestations to the contrary, suspicions were rife that the company, led by Bernd Korz, did not have legal access to the source code the software was based on, and the abillity and right to develop and distribute it.

Just a couple of days ago, Mr Korz announced that the Zeta project, following the severing of financial patronage by Magnussoft, would cease all development.

A comment was left on our article yesterday covering this development by David "Lefty" Schlesinger, the Director of Open Source Technologies at ACCESS Co., Ltd., saying in no uncertain terms that Zeta had no legal rights to distribute the BeOS software, much less open source any of it, as the rumours had it.
Zeta is not, nor has it ever been, a licensee of PalmSource (or ACCESS, the company which acquired PalmSource year before last) in any way, shape or form. If Zeta or magnussoft has claimed that they have a license with us, that's a complete falsehood.

As the legitimate owners of the intellectual property formerly belonging to Be, our position is that the product marketed by YellowTab and then by magnussoft represents a pirated version of BeOS, done without our permission or approval.

magnussoft is thus in no position to open source anything, since their product, in its entirety, represents a derivative work of our intellectual property.
We naturally attempted to contact ACCESS and Mr Schlesinger to confirm, and elaborate on, these statements, and asked the following questions:


Hello, Mr Schlesinger. I just wanted to confirm that a comment left at Bits of News, concerning the Zeta version of BeOS, was indeed posted by yourself. If that is indeed the case, could you elaborate a bit on your statement?

Bernd Korz/YellowTAB/Magnussoft, while always being vague on the details, have in the past stated that they had a license - the impression given was that it predated the PalmSource takeover of Be Inc. - to distribute and develop the BeOS/Dano property. Is it yours, and Access', contention that that was never the case?

Again, if that is the case, why has no action, through public statement, or legal proceedings, been taken prior to the disbandment of Zeta as a going concern?

In your comment you state that "magnussoft is thus in no position to open source anything, since their product, in its entirety, represents a derivative work of our intellectual property." Can this be understood to mean that you and/or Access feel that any code added by YellowTAB/Magnussoft, or third parties connected to them, outside of the original Dano code base, is to be regarded as derivative works, and thus out of bounds as far as open sourcing it is concerned?

In view of your above comment, what is your and/or Access' position on the non-profit, community produced distribution of BeOS, such as BeOS Max?

We'd be most grateful if you could find an opportunity to answer some, or all, of these question.



We have now received confirmation, and the following statement from Mr Schlesinger:
Yes, I made that comment.

The main reason that there hasn't been a public statement previously is that dealing with this matter legally, in Germany, is an expensive undertaking and--given the apparently small amount of funding behind Zeta in its various incarnations--we'd only be in a position to spend significant money and legal time to make a point.

We realize no income from BeOS, and our belief at this point is that any money we could make from it would be vastly exceeded by the operational costs of doing so. The author of, for example, the Harry Potter books doesn't pursue infringement proceedings against the numerous writers of "fan fiction"--which are clear infringements--for pretty much identical reasons.

We have, however, sent "cease and desist" letters to YellowTab on a number of occasions, which have been uniformly ignored. If Herr Korz feels that he holds a legitimate license to the BeOS code he's been using, we're completely unaware of it, and I'd be fascinated to see him produce any substantiation for that claim.

I felt that the possibility of this code being released as open source required a response on our part at this time.

And yes, any modifications made to an infringing version of BeOS are likewise infringements of our copyright, since--as I said--they represent an unauthorized derivative work.

I haven't looked into BeOS Max, but if it represents original work, then I wouldn't see it as being an issue. If it's derivative of works on which we control the copyright, i.e. if it includes substantial and recognizable portions of such works, then it's a problem.

I'm a supporter of the Haiku Project, as Jorge Mare will be able to confirm for you, since I believe Haiku _does_ represent original work. In fact, I have recently--at Jorge's behest--released "The Be Book" and several Be-generated newletters under a Creative Commons deed--specifying "no derivative works, no commercial use, must attribute--so as to allow the Haiku Project to make those more widely available. Koki did the proper thing: he _asked_ me first.

ACCESS has consistently been a major supporter of open source projects. This doesn't extend, however, to third-parties open sourcing code which belongs to us without our approval or consent, especially when the provenance of that code is highly questionable to begin with.
As regards BeOS Max, and other not for profit "souped up" distributions of the freely available BeOS 5, one can only hope that ACCESS will recognise that these are made in the spirit, if not the letter, of Open Source, and a much needed bridge for most users to the fully Open Source Haiku.

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