From: usenet@crd.ge.com (Required for NNTP) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software Subject: BSDI lawsuit Message-ID: <1992Dec28.141701.25015@crd.ge.com> Date: 28 Dec 92 14:17:01 GMT Organization: GE Corporate R&D Center Lines: 26 Nntp-Posting-Host: ariel.crd.ge.com I have a very narrow question about one legal point of the BSDI suit, which hopefully will not get drawn off into a tangent about economic or moral issues. My limited understanding of "trade secret" law leads me to believe that once the cat is out of the bag, it's out. Based on a single data point, I believe that if someone reveals a trade secret the original holder can take legal action against the party revealing the secret, but not against any future users of the information. I base this one the fact that every non-disclosure agreement I run past our lawyers agrees to keep the secret "unless the information shall become public by other means." When I asked about this some years ago, I was told that if the information got out it was unprotected except by secrecy. Now, assuming that this is substantially true, *if* USL asserts that the net/2 release contains trade secret information, does that not mean that the only cause of action is against UCB, and that anyone can now make use of the information published in net/2? I'd like to get an answer from a lawyer, since my original legal source passed away several years ago. -- bill davidsen, GE Corp. R&D Center; Box 8; Schenectady NY 12345 Keyboard controller has been disabled, press F1 to continue. Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software,misc.legal From: mnemonic@eff.org (Mike Godwin) Subject: Re: BSDI lawsuit Message-ID: <1992Dec28.153045.5295@eff.org> Originator: mnemonic@eff.org Sender: usenet@eff.org (NNTP News Poster) Nntp-Posting-Host: eff.org Organization: Electronic Frontier Foundation References: <1992Dec28.141701.25015@crd.ge.com> Date: Mon, 28 Dec 1992 15:30:45 GMT Lines: 24 In article <1992Dec28.141701.25015@crd.ge.com> usenet@crd.ge.com (Required for NNTP) writes: >Based on a >single data point, I believe that if someone reveals a trade secret the >original holder can take legal action against the party revealing the >secret, but not against any future users of the information. This is more or less the case. Incidentally, the party revealing the secret can sued only if that party acquired the information by improper means, such as violating a fiduciary relationship or an employment contract. If I run across a trade secret that somebody has left on the subway seat next to me, I can reveal it without having action taken against me. --Mike -- Mike Godwin, |"I'm waiting for the one-man revolution mnemonic@eff.org| The only one that's coming." (617) 864-0665 | EFF, Cambridge | --Robert Frost Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software,misc.legal From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1992Dec28.141701.25015@crd.ge.com> <1992Dec28.153045.5295@eff.org> Date: Tue, 29 Dec 1992 16:56:37 GMT Lines: 15 mnemonic@eff.org (Mike Godwin) writes: >Incidentally, the party revealing the secret can sued only if that party >acquired the information by improper means, such as violating a fiduciary >relationship or an employment contract. If I run across a trade secret >that somebody has left on the subway seat next to me, I can reveal it >without having action taken against me. Unless you knew or should have known that the trade secret was acquired by improper means. (Uniform Trade Secret Act). Bruce E. Hayden (303) 758-8400 bhayden@csn.org Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software,misc.legal From: mnemonic@eff.org (Mike Godwin) Subject: Re: BSDI lawsuit Message-ID: <1992Dec30.212445.29973@eff.org> Originator: mnemonic@eff.org Sender: usenet@eff.org (NNTP News Poster) Nntp-Posting-Host: eff.org Organization: Electronic Frontier Foundation References: <1992Dec28.141701.25015@crd.ge.com> <1992Dec28.153045.5295@eff.org> Date: Wed, 30 Dec 1992 21:24:45 GMT Lines: 36 In article bhayden@teal.csn.org (Bruce Hayden) writes: >mnemonic@eff.org (Mike Godwin) writes: > >>Incidentally, the party revealing the secret can sued only if that party >>acquired the information by improper means, such as violating a fiduciary >>relationship or an employment contract. If I run across a trade secret >>that somebody has left on the subway seat next to me, I can reveal it >>without having action taken against me. > >Unless you knew or should have known that the trade secret was acquired >by improper means. (Uniform Trade Secret Act). I believe this applies only if scienter *precedes* the acquisition, Bruce. It seems likely that, say, a Wall Street Journal reporter who comes across a trade secret after it has been left on the subway could publish what she finds, without fear of civil or criminal liability, even if it is apparent that the secret was originally acquired or disclosed by improper means. For a discussion of related legal issues, see my article, "Some 'Property' Problems in Computer Crime Prosecution," in the Cardozo Law Forum's August 24 issue. --Mike --Mike -- Mike Godwin, |"I'm waiting for the one-man revolution mnemonic@eff.org| The only one that's coming." (617) 864-0665 | EFF, Cambridge | --Robert Frost Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software,misc.legal From: brent@media.mit.edu (Brent C.J. Britton) Subject: Re: BSDI lawsuit Message-ID: <1992Dec31.155423.23198@news.media.mit.edu> Sender: news@news.media.mit.edu (USENET News System) Organization: MIT Media Laboratory References: <1992Dec28.153045.5295@eff.org> <1992Dec30.212445.29973@eff.org> Date: Thu, 31 Dec 1992 15:54:23 GMT Lines: 39 mnemonic@eff.org (Mike Godwin) writes: >bhayden@teal.csn.org (Bruce Hayden) writes: >>mnemonic@eff.org (Mike Godwin) writes: >> >>> If I run across a trade secret >>>that somebody has left on the subway seat next to me, I can reveal it >>>without having action taken against me. >> >>Unless you knew or should have known that the trade secret was acquired >>by improper means. (Uniform Trade Secret Act). > >I believe this applies only if scienter *precedes* the acquisition, >Bruce. It seems likely that, say, a Wall Street Journal reporter >who comes across a trade secret after it has been left on the >subway could publish what she finds, without fear of civil or criminal >liability, even if it is apparent that the secret was originally acquired >or disclosed by improper means. > The restatement conflicts with the uniform act on this point. Both the restatement and the uniform TS act include in the definition of misappropriation the use or disclosure of a TS, without consent, by a person who had reason to know it was a TS and that knowledge of it had been acquired by accident or mistake. According to the restatement, the misappropriator is required to have notice before learning the TS. According to the uniform act, scienter must precede "a material change in his or her position", not merely acquisition. -brent -- --- Brent C.J. Britton "I never expect to see a perfect work from imperfect man." -- Publius (Alexander Hamilton) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software,misc.legal From: mnemonic@eff.org (Mike Godwin) Subject: Re: BSDI lawsuit Message-ID: <1992Dec31.165457.9654@eff.org> Originator: mnemonic@eff.org Sender: usenet@eff.org (NNTP News Poster) Nntp-Posting-Host: eff.org Organization: Electronic Frontier Foundation References: <1992Dec30.212445.29973@eff.org> <1992Dec31.155423.23198@news.media.mit.edu> Date: Thu, 31 Dec 1992 16:54:57 GMT Lines: 35 In article <1992Dec31.155423.23198@news.media.mit.edu> brent@media.mit.edu (Brent C.J. Britton) writes: >mnemonic@eff.org (Mike Godwin) writes: >> >>I believe this applies only if scienter *precedes* the acquisition, >>Bruce. It seems likely that, say, a Wall Street Journal reporter >>who comes across a trade secret after it has been left on the >>subway could publish what she finds, without fear of civil or criminal >>liability, even if it is apparent that the secret was originally acquired >>or disclosed by improper means. > >The restatement conflicts with the uniform act on this point. My guess is that the restatement would likely be used in interpreting the Uniform Act. See below. >According to the restatement, the misappropriator is required to have >notice before learning the TS. According to the uniform act, scienter >must precede "a material change in his or her position", not merely >acquisition. Given that the rationale of the Trade Secrets Act, like all trade-secrets law, is to prevent unfair competition, it seems unlikely that my hypothetical Wall Street Journal reporter would be seen as a likely defendant in an action under the act. --Mike -- Mike Godwin, |"I'm waiting for the one-man revolution mnemonic@eff.org| The only one that's coming." (617) 864-0665 | EFF, Cambridge | --Robert Frost From: edguer@ces.cwru.edu (Aydin Edguer) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk Subject: Re: BSDI lawsuit Date: 28 Dec 1992 23:21:27 GMT Organization: Computer Engineering and Science, Case Western Reserve University Lines: 53 Distribution: inet Message-ID: <1ho25nINNm7n@usenet.INS.CWRU.Edu> References: <1992Dec28.141701.25015@crd.ge.com> NNTP-Posting-Host: charlie.ces.cwru.edu In article <1992Dec28.141701.25015@crd.ge.com> davidsen@ariel.crd.GE.COM (bill davidsen) writes: > Now, assuming that this is substantially true, *if* USL asserts that >the net/2 release contains trade secret information, does that not mean >that the only cause of action is against UCB, and that anyone can now >make use of the information published in net/2? If USL was *only* asserting a violation of the non-disclosure of trade secret information, this would be true. USL however is not limiting itself to trade secret law and in fact does not refer to it explicitly in the initial complaint. According to the USL April 20, 1992 complaint: 25. ... among other things, the "Networking Release 2" referred to therein contains software code that was copied from, based upon, or derived from, code licensed to the Regents by AT&T, such that any operating system derived from "Networking Release 2" requires a license from AT&T or its successor, USL. Notice that there is no mention of trade secrets, copyrights, or patents. USL instead refers to the licensing agreement between Berkeley and AT&T. 11. Pursuant to agreement with AT&T, the Regents of the University of California (the "Regents") have been authorized to distribute to third parties certain works derived from UNIX system software subject to various restrictions intended to protect and preserve AT&T's proprietary rights thereto. Those restrictions include a requirement limiting such distribution to persons who have also acquired licenses from AT&T or USL. The USL July 24, 1992 complaint does enlarge upon this language: 2. USL seeks... to... permanently enjoin the Regents... from developing, promoting, reproducing, and distributing computer software products which are based upon, copied from, or derived from USL's proprietary and copyrighted UNIX operating system software, except as authorized by agreements between the Regents and USL.... 6. Substantial portions of the source code embodied in the Networking Release 2 software and its BSDI derivative, BSD/386 Source, are based upon, substantially copied from or derived from original UNIX(R) system source code disclosed in confidence to the Regents under restrictive license agreements. So USL is claiming copyright violations. Note the reference to "in confidence" does appear to refer to trade secrets, but that they have not limited themselves to only trade secret violations. Unless and until the case is either settled or USL states the category of violation for each piece of code in question, people should not make assumptions about the use of the information contained in net/2 code. Aydin Edguer Not a lawyer From: sef@Kithrup.COM (Sean Eric Fagan) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk Subject: Re: BSDI lawsuit Date: 28 Dec 1992 16:12:31 -0800 Organization: UUNET Communications Lines: 12 Sender: sef@ftp.UU.NET Distribution: inet Message-ID: <1ho55fINN731@ftp.UU.NET> References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> NNTP-Posting-Host: ftp.uu.net In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >So USL is claiming copyright violations. The 32V code that the university started out from was not copyrighted. (No explicit copyright notice, and it was done before the US said that things were automatically copyrighted.) So they would probably lose a copyright charge. That's my understanding of it, if I'm wrong, I'm sure I'll be told real quick :). Newsgroups: comp.org.eff.talk,alt.suit.att-bsdi From: hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) Subject: Re: BSDI lawsuit Date: 29 Dec 92 06:37:42 MST Message-ID: <1992Dec29.063742.22155@hellgate.utah.edu> Followup-To: alt.suit.att-bsdi,comp.org.eff.talk Summary: Lack of copyright notice != no copyright Keywords: copyright, notice Organization: University of Utah CS Dept References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> Distribution: inet Expires: January 31, 1993 Lines: 39 In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >>So USL is claiming copyright violations. > >The 32V code that the university started out from was not copyrighted. >(No explicit copyright notice, and it was done before the US said that >things were automatically copyrighted.) >So they would probably lose a copyright charge. Not quite so simple. It depends on two facts -- when was the code first fixed in a tangible medium and whether the code was published. Publication generally means sale or other transfer of ownership, rental, lease, or lending. It would probably not be code licensed with restrictions on further distribution. Before the effective date of the Copyright Act of 1976 (January 1, 1978), the prior federal copyright act covered only published works, and required notice on the work at the time it was published or copyright was lost. Unpublished works were covered by state copyright laws (generally common law rather than statutory law). If a copyrighted work contained a notice, this generally meant that the work would be considered as published, so unpublished works would not normally have a copyright notice. The Copyright Act of 1976 changed all this. "Copyright protection subsists ... in original works of authorship fixed in any tangible medium ..." (Section 102) No notice is required, and state copyright laws on unpublished works are preempted by the federal law (Section 301). The notice requirement before the Berne amendments in 1988 read "Whenever a work protected by copyright under this title is *published* in the United States ... a notice of copyright shall be placed on *publically distributed* copies ..." (Section 401) Note that the requirement is only for published works, and only on the publically distributed copies. So, if 32V is an unpublished work, it is likely protected either under state copyright law (if written prior to 1978) or federal law, even if it has no notice. Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.175458.25739@fcom.cc.utah.edu> Keywords: copyright, notice Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Tue, 29 Dec 92 17:54:58 GMT Lines: 62 In article <1992Dec29.063742.22155@hellgate.utah.edu> hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >>>So USL is claiming copyright violations. >> >>The 32V code that the university started out from was not copyrighted. >>(No explicit copyright notice, and it was done before the US said that >>things were automatically copyrighted.) >>So they would probably lose a copyright charge. > >Not quite so simple. It depends on two facts -- when was the code first >fixed in a tangible medium and whether the code was published. Publication >generally means sale or other transfer of ownership, rental, lease, or >lending. It would probably not be code licensed with restrictions on >further distribution. > >Before the effective date of the Copyright Act of 1976 (January 1, 1978), >the prior federal copyright act covered only published works, and required >notice on the work at the time it was published or copyright was lost. >Unpublished works were covered by state copyright laws (generally common >law rather than statutory law). [ ... ] >The Copyright Act of 1976 changed all this. "Copyright protection >subsists ... in original works of authorship fixed in any tangible >medium ..." (Section 102) No notice is required, and state copyright >laws on unpublished works are preempted by the federal law (Section 301). >The notice requirement before the Berne amendments in 1988 read >"Whenever a work protected by copyright under this title is *published* >in the United States ... a notice of copyright shall be placed on >*publically distributed* copies ..." (Section 401) Note that the >requirement is only for published works, and only on the publically >distributed copies. > >So, if 32V is an unpublished work, it is likely protected either under >state copyright law (if written prior to 1978) or federal law, even if >it has no notice. From Websters: ] pub.lish \'p*b-lish\ \-*-b*l\ vb [ME publishen, modif. of MF publier, fr. L ] publicare, fr. ]publicus 1a: to make generally known 1b: to make public ] announcement of obs 2: ADVERTISE 3a: to place before the public : ] DISSEMINATE 3b: to produce or release for publication; specif : PRINT 3c: ] to issue the work of (an author) 1: to put out an edition 2: to have one's ] work accepted for publication {a ~ing scholar} - pub.lish.able aj Was 32V published? Under 1a, 3b(produce), and 3c.1, it seems an argument could be made. What are the pre 01 Jan 78 protections provided by the stae of California, and were the statuatory terms met by the 32V distribution? Terry Lambert terry@icarus.weber.edu --- Any opinions in this posting are my own and not those of my present or previous employers. -- ------------------------------------------------------------------------------- "I have an 8 user poetic license" - me Get the 386bsd FAQ from agate.berkeley.edu:/pub/386BSD/386bsd-0.1/unofficial ------------------------------------------------------------------------------- Newsgroups: comp.org.eff.talk,alt.suit.att-bsdi From: hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) Subject: Re: BSDI lawsuit Date: 29 Dec 92 11:24:52 MST Message-ID: <1992Dec29.112452.3257@hellgate.utah.edu> Keywords: copyright, notice Organization: University of Utah CS Dept References: <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> <1992Dec29.175458.25739@fcom.cc.utah.edu> Distribution: inet Lines: 27 In article <1992Dec29.175458.25739@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >From Websters: >] pub.lish \'p*b-lish\ \-*-b*l\ vb [ME publishen, modif. of MF publier, fr. L >] publicare, fr. ]publicus 1a: to make generally known 1b: to make public >] announcement of obs 2: ADVERTISE 3a: to place before the public : >] DISSEMINATE 3b: to produce or release for publication; specif : PRINT 3c: >] to issue the work of (an author) 1: to put out an edition 2: to have one's >] work accepted for publication {a ~ing scholar} - pub.lish.able aj > >Was 32V published? Under 1a, 3b(produce), and 3c.1, it seems an argument >could be made. "Publication" is defined in the Copyright Act of 1976 as the distribution of copies or phonrecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. So, at least for works after the effective date of the Act, the "Websters" (which one, since there are a number of dictionary comapnies that use the name Webster) doesn't have any authority. As to what is publication before the Act, a definition might be found in the prior (1909) copyright act, since it depended highly on publication, or in the case law of the appropriate jurisdiction. (That might not be California, depending on the choice of law section of the license for 32V.) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: johnm@cory.Berkeley.EDU (John D. Mitchell) Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.194802.18245@pasteur.Berkeley.EDU> Keywords: copyright, notice Sender: nntp@pasteur.Berkeley.EDU (NNTP Poster) Nntp-Posting-Host: cory.berkeley.edu Organization: University of California, at Berkeley References: <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> <1992Dec29.175458.25739@fcom.cc.utah.edu> Date: Tue, 29 Dec 1992 19:48:02 GMT Lines: 24 In article <1992Dec29.175458.25739@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >] pub.lish \'p*b-lish\ \-*-b*l\ vb [ME publishen, modif. of MF publier, fr. L >] publicare, fr. ]publicus 1a: to make generally known 1b: to make public >] announcement of obs 2: ADVERTISE 3a: to place before the public : >] DISSEMINATE 3b: to produce or release for publication; specif : PRINT >]3c: >] to issue the work of (an author) 1: to put out an edition 2: to have one's >] work accepted for publication {a ~ing scholar} - pub.lish.able aj > >Was 32V published? Under 1a, 3b(produce), and 3c.1, it seems an argument >could be made. > >What are the pre 01 Jan 78 protections provided by the stae of California, >and were the statuatory terms met by the 32V distribution? Hmm.. There is a fairly specific definition of 'publish' that is used in conjunction with copyright law. How closely that definition matches the Webster dictionary version is immaterial (obviously the gist is the same but the criteria used to judge whether or not some software was 'published' with respect to copyright law is the key). John johnm@cory.Berkeley.EDU Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Keywords: copyright, notice Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> <1992Dec29.175458.25739@fcom.cc.utah.edu> Distribution: inet Date: Wed, 30 Dec 1992 14:58:10 GMT Lines: 28 terry@cs.weber.edu (A Wizard of Earth C) writes: >> >>So, if 32V is an unpublished work, it is likely protected either under >>state copyright law (if written prior to 1978) or federal law, even if >>it has no notice. >From Websters: >] pub.lish \'p*b-lish\ \-*-b*l\ vb [ME publishen, modif. of MF publier, fr. L >] publicare, fr. ]publicus 1a: to make generally known 1b: to make public >] announcement of obs 2: ADVERTISE 3a: to place before the public : >] DISSEMINATE 3b: to produce or release for publication; specif : PRINT 3c: >] to issue the work of (an author) 1: to put out an edition 2: to have one's >] work accepted for publication {a ~ing scholar} - pub.lish.able aj >Was 32V published? Under 1a, 3b(produce), and 3c.1, it seems an argument >could be made. Webster's definition is not relevant. Publication in this case is a legal term of art, partly defined by the Copyright Act, and partly defined by legal cases. The problem is that a "limited distribution" is not considered a "publication". The distinction depends on how widely the work was distributed, and how tightly the distribution was controlled. Bruce E. Hayden (303) 758-8400 bhayden@csn.org Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Keywords: copyright, notice Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Tue, 29 Dec 1992 17:02:02 GMT Lines: 55 hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >>>So USL is claiming copyright violations. >> >>The 32V code that the university started out from was not copyrighted. >>(No explicit copyright notice, and it was done before the US said that >>things were automatically copyrighted.) >>So they would probably lose a copyright charge. >Not quite so simple. It depends on two facts -- when was the code first >fixed in a tangible medium and whether the code was published. Publication >generally means sale or other transfer of ownership, rental, lease, or >lending. It would probably not be code licensed with restrictions on >further distribution. >Before the effective date of the Copyright Act of 1976 (January 1, 1978), >the prior federal copyright act covered only published works, and required >notice on the work at the time it was published or copyright was lost. >Unpublished works were covered by state copyright laws (generally common >law rather than statutory law). >If a copyrighted work contained a notice, this generally meant that the >work would be considered as published, so unpublished works would not >normally have a copyright notice. Well, not exactly. I do not think that you can say that just because it didn't have a notice that it is unpublished (if prior to the 1976 C/R Act). Publication is primarily a question of fact, with the court looking at how widely the work was distributed, and how tightly the distribution was controlled. >The Copyright Act of 1976 changed all this. "Copyright protection >subsists ... in original works of authorship fixed in any tangible >medium ..." (Section 102) No notice is required, and state copyright >laws on unpublished works are preempted by the federal law (Section 301). >The notice requirement before the Berne amendments in 1988 read >"Whenever a work protected by copyright under this title is *published* >in the United States ... a notice of copyright shall be placed on >*publically distributed* copies ..." (Section 401) Note that the >requirement is only for published works, and only on the publically >distributed copies. >So, if 32V is an unpublished work, it is likely protected either under >state copyright law (if written prior to 1978) or federal law, even if >it has no notice. Again, I think that you are too quick to jump to the conclusion that the work was "unpublished". Bruce E. Hayden (303) 758-8400 bhayden@csn.org From: hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) Newsgroups: comp.org.eff.talk,alt.suit.att-bsdi Subject: Re: BSDI lawsuit Keywords: copyright, notice Message-ID: <1992Dec29.113154.3583@hellgate.utah.edu> Date: 29 Dec 92 18:31:53 GMT References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Organization: University of Utah CS Dept Lines: 23 In article bhayden@teal.csn.org (Bruce Hayden) writes: >hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >>Not quite so simple. It depends on two facts -- when was the code first >>fixed in a tangible medium and whether the code was published. Publication >>generally means sale or other transfer of ownership, rental, lease, or >>lending. It would probably not be code licensed with restrictions on >>further distribution. >> ... >>So, if 32V is an unpublished work, it is likely protected either under >>state copyright law (if written prior to 1978) or federal law, even if >>it has no notice. > >Again, I think that you are too quick to jump to the conclusion that >the work was "unpublished". Actually, I didn't jump to the any conclusion, but was pointing out that just because there was no copyright notice doesn't mean that it isn't protected by copyright. I agree (and stated) that the situation is fact-intensive, depending not only on the date of the writing to determine the applicable law but also whether its distribution under the license agreement or otherwise constituted a publication. Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: bzs@world.std.com (Barry Shein) Subject: Re: BSDI lawsuit In-Reply-To: bhayden@teal.csn.org's message of Tue, 29 Dec 1992 17:02:02 GMT Message-ID: Sender: bzs@world.std.com (Barry Shein) Organization: The World References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Tue, 29 Dec 1992 19:06:13 GMT Lines: 19 >Well, not exactly. I do not think that you can say that just because >it didn't have a notice that it is unpublished (if prior to the >1976 C/R Act). Publication is primarily a question of fact, with >the court looking at how widely the work was distributed, and >how tightly the distribution was controlled. As I remember all AT&T Unix source code after some (early) date had the following notice attached (approximately): This file contains unpublished, proprietary source code... So... -- -Barry Shein Software Tool & Die | bzs@world.std.com | uunet!world!bzs Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: nagle@netcom.com (John Nagle) Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.180341.29581@netcom.com> Keywords: copyright, notice Organization: Netcom - Online Communication Services (408 241-9760 guest) References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Tue, 29 Dec 1992 18:03:41 GMT Lines: 48 hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >>>So USL is claiming copyright violations. >> >>The 32V code that the university started out from was not copyrighted. >>(No explicit copyright notice, and it was done before the US said that >>things were automatically copyrighted.) >>So they would probably lose a copyright charge. Original AT&T 32V tapes bore a copyright sticker on the reel. When I first installed 4.1 BSD UNIX at Ford Aerospace, we had to licence 32V from AT&T. This was a big undertaking in 1980 or thereabouts, requiring lawyers on both sides to negotiate an agreement. Eventually, I received a contract embossed with the corporate seals of both Ford Motor and AT&T. (There were some legal complications, because Ford and AT&T had a long-standing cross-licensing agreement on technology.) It was expensive, $40,000 as I recall, for our first source licence. We paid. It was worth it. Ford Aerospace's legal people then approved the Berkeley UNIX licence agreement, which required that we have a source licence for 32V first. AT&T delivered 32V, on several 1/2" tape reels bearing a copyright sticker. I opened the box, admired the tapes, and put the box in a safe place. They were never used except as a symbol that we had the right to use them. DEC delivered the VAX 11/780, and I drove up to Berkeley, with copies of the licences and blank tapes, and somebody in Bill Joy's group ran off a copy of 4.1BSD for me. That part was free. So there were indeed copyright notices at the point one dealt directly with AT&T for UNIX 32V. But that's not the issue. 32V was a simple port of the PDP-11 version of UNIX. Berkeley did a major overhaul on the kernel, eventually rewriting it completely. All the networking code is pure Berkeley. Virtual memory in UNIX was a Berkeley innovation. Sockets, psuedoteletypes, modern signal handing, "vi", "termcap", and job control were all Berkeley innovations. Berkeley replaced the abysmal scheduler that came from AT&T, added decent memory management, and generally replaced most of the kernel algorithms. But they did this bit-by-bit over a decade, not in a "clean room" environment from the specs. (Clean room cloning hadn't been invented in 1980, remember. The IBM PC only dates from 1980, strange as it seems now.) Thus, they have copyright problems. If you replace everything, is it still a "derivative work"? John Nagle John Nagle Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.223919.1885@fcom.cc.utah.edu> Keywords: copyright, notice Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> <1992Dec29.180341.29581@netcom.com> Distribution: inet Date: Tue, 29 Dec 92 22:39:19 GMT Lines: 111 In article <1992Dec29.180341.29581@netcom.com> nagle@netcom.com (John Nagle) writes: >hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >>In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >>>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >>>>So USL is claiming copyright violations. >>> >>>The 32V code that the university started out from was not copyrighted. >>>(No explicit copyright notice, and it was done before the US said that >>>things were automatically copyrighted.) >>>So they would probably lose a copyright charge. > > Original AT&T 32V tapes bore a copyright sticker on the reel. >When I first installed 4.1 BSD UNIX at Ford Aerospace, we had to licence >32V from AT&T. This was a big undertaking in 1980 or thereabouts, requiring >lawyers on both sides to negotiate an agreement. The 32V tapes at UCB were pre 1978, weren't they? It make sense that anything post 01 Jan 78 would have a copyright on it, but prior to that, copyright was an indicator of publication. Anyone remember what the pre 78 tapes had on them? > So there were indeed copyright notices at the point one dealt >directly with AT&T for UNIX 32V. Post 78, yes. > But that's not the issue. 32V was a simple port of the PDP-11 >version of UNIX. Berkeley did a major overhaul on the >kernel, eventually rewriting it completely. All the networking code >is pure Berkeley. Virtual memory in UNIX was a Berkeley innovation. >Sockets, psuedoteletypes, modern signal handing, "vi", "termcap", >and job control were all Berkeley innovations. Berkeley replaced the >abysmal scheduler that came from AT&T, added decent memory management, >and generally replaced most of the kernel algorithms. But they did this >bit-by-bit over a decade, not in a "clean room" environment from the >specs. (Clean room cloning hadn't been invented in 1980, remember. >The IBM PC only dates from 1980, strange as it seems now.) >Thus, they have copyright problems. If you replace everything, is >it still a "derivative work"? If I buy a 65 Ford Mustang, and replace all the parts with parts from Checker auto and similar stores, is it still a 65 Ford Mustang? If not, is it still a Ford Mustang (though not necessarily a 65)? Same questions for a 65 Ford Mustang built from scratch with no Ford parts? At what point does it quit being a 65 Ford Mustang and become just a Ford Mustang? At what point does it quit being a Ford Mustang and become just a Mustang? At what point is it not a Mustang, but just some car that looks like one? Ok, I buy a 92 Ford Mustang, and replace half the parts -- Does Ford still have to honor the warranty? I replace all the parts -- same question? I build one from scratch with no Ford parts -- does it have a warranty? 8-). OK, I use Ford parts -- now does it have a warranty? These are basically the analogous questions for real property; there are real, legally definitive answers for these questions with regard to real property. For real property, the "clean room" test is meaningless. IBB (Bricklin) used the Mustang chassis for their car; it wasn't a Mustang... yet the car was definitely *not* a "clean room" design. To extend the attributes of real property to intellectual property -- which appears to be what at least part of the suit is about -- would grant, effectively, patent-type rights to the owner of a copyright on the intellectual property. This is without the corresponding term limitations normally associated with patents, since copyrights are effective until 50 years following the death of the author. This is a double edged sword, since if intellectual property is to be treated as real property, other law which is applicable to real property can be brought to bear on intellectual property. In particular, this would leave USL open to counterclaim on the basis of adverse posession, a real property concept, wherein UCB can be said to have acquired a real interest in USL's property on the basis of USL having not done anything about it for too long (this is generally between 6 months and two years, and is dependent on local statutes). Thus a prescriptive lien. Whether replacing everything still constitutes a derivitive work will depend on whether the trade secrets are considered the real property of USL. Current decisions regarding "clean room" coding practices and their effect on whether a work is a deriviation or not will probably figure big in deciding this (and, I think, simply serve to cloud the real issues). So there is probably no clear answer to your question of what constitutes a derivitive work; this case will probably set several precedents if only because of that. Terry Lambert terry@icarus.weber.edu --- Any opinions in this posting are my own and not those of my present or previous employers. -- ------------------------------------------------------------------------------- "I have an 8 user poetic license" - me Get the 386bsd FAQ from agate.berkeley.edu:/pub/386BSD/386bsd-0.1/unofficial ------------------------------------------------------------------------------- Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Keywords: copyright, notice Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> <1992Dec29.180341.29581@netcom.com> Distribution: inet Date: Wed, 30 Dec 1992 15:15:22 GMT Lines: 21 nagle@netcom.com (John Nagle) writes: >hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: >>In article <1ho55fINN731@ftp.UU.NET> sef@Kithrup.COM (Sean Eric Fagan) writes: >>>In article <1ho25nINNm7n@usenet.INS.CWRU.Edu> edguer@ces.cwru.edu (Aydin Edguer) writes: >Thus, they have copyright problems. If you replace everything, is >it still a "derivative work"? We asked this exact same question around the office last week on another program. The answer seems to be no - it is not a derivative work. What is protected in a derivative work (if by a different author) is the amount of new material added. This makes sense - you can't pick up copyright protection on someone else's work just by adding something here or there. So - what you essentially have to do is filter out the added (derivitive) material and see what is left. Bruce E. Hayden (303) 758-8400 bhayden@csn.org Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.224841.2158@fcom.cc.utah.edu> Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Tue, 29 Dec 92 22:48:41 GMT Lines: 34 In article bzs@world.std.com (Barry Shein) writes: >The matter is still a lot more complicated than it would be with a >simpler matter (e.g. AT&T being forbidden from entering the software >market at the time and their handling of their intellectual property >in order to get around that.) I think this may be key. >Anyhow, the core of the dispute is whether or not Net/2 violates USL's >claims at all, regardless of the basis for those claims (i.e. is it a >copy at all?) Would a win by USL place AT&T in violation of the Sherman antitrust acts because it would mean they were involved in a proscribed activity? By deriving profit now for their activities then, are they in violation of Sherman? Does it matter that they profit from the proscribed act after the fact (ie: is there a statue of limitations re Sherman)? Does selling USL relieve AT&T of this? Inquiring minds want to know... Terry Lambert terry@icarus.weber.edu --- Any opinions in this posting are my own and not those of my present or previous employers. -- ------------------------------------------------------------------------------- "I have an 8 user poetic license" - me Get the 386bsd FAQ from agate.berkeley.edu:/pub/386BSD/386bsd-0.1/unofficial ------------------------------------------------------------------------------- Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: tenney@netcom.com (Glenn S. Tenney) Subject: Re: BSDI lawsuit Message-ID: <1992Dec30.062813.3103@netcom.com> Keywords: copyright, notice Organization: Netcom - Online Communication Services (408 241-9760 guest) References: <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Wed, 30 Dec 1992 06:28:13 GMT Lines: 18 In article <1992Dec29.063742.22155@hellgate.utah.edu> hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: > ... >The Copyright Act of 1976 changed all this. "Copyright protection > ... > >So, if 32V is an unpublished work, it is likely protected either under >state copyright law (if written prior to 1978) or federal law, even if >it has no notice. But, Lee, since there was no way to copyright software back then, how could that version be protectable by copyright at all? -- Glenn Tenney voice: (415) 574-3420 fax: (415) 574-0546 tenney@netcom.com Ham radio: AA6ER Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1992Dec28.141701.25015@crd.ge.com> <1ho25nINNm7n@usenet.INS.CWRU.Edu> <1ho55fINN731@ftp.UU.NET> <1992Dec29.063742.22155@hellgate.utah.edu> Distribution: inet Date: Wed, 30 Dec 1992 15:23:01 GMT Lines: 21 bzs@world.std.com (Barry Shein) writes: >>So, if 32V is an unpublished work, it is likely protected either under >>state copyright law (if written prior to 1978) or federal law, even if >>it has no notice. >Whether that's true or not under US law your ability to recover >monetary damages under an unregistered copyright is almost nil. About >all you can do is stop the other person from continuing to violate. Well - I think that recovery on an unregistered copyright is even lower. Registration is a jurisdictional matter - the federal courts cannot look at a U.S. copyright claim (with a few new Berne exceptions) unless it has been registered. (Of course, federal jurisdiction in copyright matters is exclusive). The question though is notice (or marking) - not registration. Bruce E. Hayden (303) 758-8400 bhayden@csn.org From: tjc50@juts.ccc.amdahl.com (Terry Carroll) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal Subject: Re: BSDI lawsuit Keywords: copyright, notice Message-ID: <69hl02ts30SD01@JUTS.ccc.amdahl.com> Date: 5 Jan 93 02:17:28 GMT References: <1992Dec29.063742.22155@hellgate.utah.edu> Sender: netnews@ccc.amdahl.com Reply-To: tjc50@juts.ccc.amdahl.com (Terry Carroll) Organization: Amdahl Corporation Lines: 22 In article <1992Dec29.063742.22155@hellgate.utah.edu>, hollaar%basset.utah.edu@cs.utah.edu (Lee Hollaar) writes: [an excellent explanation of copyright as it relates to publication and federal preemption is omitted] > So, if 32V is an unpublished work, it is likely protected either under > state copyright law (if written prior to 1978) or federal law, even if > it has no notice. Minor quibble: only under federal law. Sec 301 preempted _all_ state copyright, even in works that were unpublished at the time of its enactment: "On and after January 1, 1978, all [copyright in a work], whether created before or after that date and whether published or unpublished are governed exclusively by this title [the Copyright Act of 1976]." 17 USC 301. For an unpublished work, copyright is governed particularly by sec. 303. State law is completely out of the picture today. Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152 The opinions presented above are not necessarily those of a sound mind. Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software From: bhayden@teal.csn.org (Bruce Hayden) Subject: Re: BSDI lawsuit Message-ID: Sender: news@csn.org (news) Nntp-Posting-Host: teal.csn.org Organization: Colorado SuperNet, Inc. References: <1992Dec28.141701.25015@crd.ge.com> Date: Tue, 29 Dec 1992 16:22:07 GMT Lines: 46 usenet@crd.ge.com (Required for NNTP) writes: > I have a very narrow question about one legal point of the BSDI suit, >which hopefully will not get drawn off into a tangent about economic or >moral issues. My limited understanding of "trade secret" law leads me >to believe that once the cat is out of the bag, it's out. Based on a >single data point, I believe that if someone reveals a trade secret the >original holder can take legal action against the party revealing the >secret, but not against any future users of the information. Not true. Trade secret law extends to those that acquire or disclose trade secrets using improper means, or know that the information was improperly acquired, OR SHOULD HAVE KNOWN. Thus, those that see "CONFIDENTIAL AND PROPRIETARY" on the top of a listing may be liable if they acquire or disclose the trade secret. > I base this one the fact that every non-disclosure agreement I run >past our lawyers agrees to keep the secret "unless the information shall >become public by other means." When I asked about this some years ago, I >was told that if the information got out it was unprotected except by >secrecy. Not quite accurate. One must determine how the information got out, and determine if the potential defendant knew or should have known that the trade secret was improperly acquired or disclosed. (or had any culpability in the misappropriation). A majority of states have adopted the Uniform Trade Secret Act. Most of the remaining states are still operating under the Restatement of Torts (First) definition of trade secrets. There is little difference between the two. The Uniform Trade Secret Act allows damages and injunctive relief for misappropriation of trade secrets. A trade secret is defined as information that 1) has value to its owner, and 2) it must be secret. Misappropriation means either (a) "acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means ", or (b) "disclosure or use of a trade secret of another without express or implied consent by a person who" essentially acquired it using improper means. Bruce E. Hayden (303) 758-8400 bhayden@csn.org Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software From: scs@iti.org (Steve Simmons) Subject: Re: BSDI lawsuit Message-ID: Sender: usenet@iti.org (Hela USENET News System) Nntp-Posting-Host: wotan.iti.org Organization: Industrial Technology Institute References: <1992Dec28.141701.25015@crd.ge.com> Date: Tue, 29 Dec 1992 17:32:06 GMT Lines: 36 bhayden@teal.csn.org (Bruce Hayden) writes: >usenet@crd.ge.com (Required for NNTP) writes: >>. . . My limited understanding of "trade secret" law leads me >>to believe that once the cat is out of the bag, it's out. Based on a >>single data point, I believe that if someone reveals a trade secret the >>original holder can take legal action against the party revealing the >>secret, but not against any future users of the information. >Not true. Trade secret law extends to those that acquire or disclose >trade secrets using improper means, or know that the information was >improperly acquired, OR SHOULD HAVE KNOWN. >Thus, those that see "CONFIDENTIAL AND PROPRIETARY" on the top of a >listing may be liable if they acquire or disclose the trade secret. Close but no cigar (and our corporate lawyer backs me up on this point). Once a trade secret has become publicly known, it is no longer trade secret. So the original poster is correct -- once the cat is out of the bag it's out, and anyone can make use of the former trade secret. However, should that secret enter the general knowledge due to improper actions on the part of some third party (eg, some publishing company decides to publish the complete sVr4 source code), that third party is liable for damages to the tune of whatever the trade secret was worth. So you're both right. Please note that trade secret and copyright are two entirely different kettles of fish. Assuming the sVr4 source code is copyright USL, the act of publishing described above would abrogate any trade secrets but would leave the copyright intact. Thus you could learn from the code and write your own, but not use *that specific code*. -- "You can't get here from here." From: mitch@cirrus.com (Mitch Wright) Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software Subject: Re: BSDI lawsuit Message-ID: <1992Dec29.202435.22318@cirrus.com> Date: 29 Dec 92 20:24:35 GMT References: <1992Dec28.141701.25015@crd.ge.com> Sender: news@cirrus.com Followup-To: poster Organization: Cirrus Logic Inc. Lines: 30 /* In scs@iti.org (Steve Simmons) writes: */ >>>. . . My limited understanding of "trade secret" law leads me >>>to believe that once the cat is out of the bag, it's out. Based on a >>>[...] >> >>Not true. Trade secret law extends to those that acquire or disclose >>[...] > >Close but no cigar (and our corporate lawyer backs me up on this point). >Once a trade secret has become publicly known, it is no longer trade >secret. So the original poster is correct -- once the cat is out of >the bag it's out, and anyone can make use of the former trade secret. > >However, should that secret enter the general knowledge due to improper >actions on the part of some third party (eg, some publishing company >decides to publish the complete sVr4 source code), that third party >is liable for damages to the tune of whatever the trade secret was worth. > What if the third party is unknown. Say someone posts all of the SVR4 source code to something like alt.sources. Since forged mail/postings are trivial, this makes the third party unknown to all, but the "secret" is now out. At this point is the "secret out of the bag"? Who is liable if anyone? Would USL just have to bite the bullet? Does the "trade secret remain intact"? Anybody know/care/read this far? ~mitch PS: No, I have no intention of finding and posting SVR4 or any other such code. Newsgroups: alt.suit.att-bsdi,comp.org.eff.talk,misc.legal.software From: tenney@netcom.com (Glenn S. Tenney) Subject: Re: BSDI lawsuit Message-ID: <1992Dec30.064635.5679@netcom.com> Organization: Netcom - Online Communication Services (408 241-9760 guest) References: <1992Dec28.141701.25015@crd.ge.com> Date: Wed, 30 Dec 1992 06:46:35 GMT Lines: 35 In article scs@iti.org (Steve Simmons) writes: > ... >Close but no cigar (and our corporate lawyer backs me up on this point). >Once a trade secret has become publicly known, it is no longer trade >secret. So the original poster is correct -- once the cat is out of >the bag it's out, and anyone can make use of the former trade secret. You're close too, but no cigar yet... This is not just about trade secret law. This is also about CONTRACT law. And UCB agreed to certain specific terms. If they agreed to not do something, then even if AT&T later releases it to the world, UCB would probably (this was from an IP lawyer I used back then) still be bound by their contract UNLESS the contract gave them an out -- if the contract said something to the effect that they would not be bound if the information was later released without those restraints. >... >Please note that trade secret and copyright are two entirely different >kettles of fish. Assuming the sVr4 source code is copyright USL, the >act of publishing described above would abrogate any trade secrets >but would leave the copyright intact. Thus you could learn from the >code and write your own, but not use *that specific code*. You are quite correct about the difference between copyright and trade secret. BUT, you are not neccessarily correct that you can learn from some code and write your own without violating a copyright. That's been the subject of many recent cases and some have found that to be a copyright infringement -- so people should not rely on your last sentence above as being correct. -- Glenn Tenney voice: (415) 574-3420 fax: (415) 574-0546 tenney@netcom.com Ham radio: AA6ER