Newsgroups: alt.suit.att-bsdi From: Fred.Gray@launchpad.unc.edu (Fred Gray) Subject: Isn't NET2 now almost certainly free? Message-ID: <1993Apr11.023543.9647@samba.oit.unc.edu> Sender: usenet@samba.oit.unc.edu Nntp-Posting-Host: lambada.oit.unc.edu Organization: University of North Carolina Extended Bulletin Board Service Date: Sun, 11 Apr 1993 02:35:43 GMT Lines: 37 Have I missed anything important in the following logic? The court has now declared twice that USL does not own a valid copyright in 32V UNIX. AT&T ceded all involved software patents to the public domain many years ago. It is impossible to sue another party for misappropriating a trade secret without eventually disclosing that trade secret and therefore losing any protection under trade secret laws. Therefore, whether USL wins or loses the lawsuit, BSD-NET2, 386BSD, and BSD/386 will all be legally distributable without a license from USL since USL will have forfeited all its proprietary rights in one way or another. Of course, it is possible that the suit could be settled out-of-court with some strange conditions. However, it seems unlikely that UCB/BSDI would accept a settlement at this stage because all the evidence points toward a clear UCB/BSDI victory. Therefore, it is almost certain that the NET2 code will be freed. Why then has CMU still not released BSDSS version 5? Why are workstation vendors still afraid to port 386BSD to their platforms and take USL's royalties for themselves? Just a question... -- Fred Gray -- fgray@cardinal.ncsc.org -- Fred.Gray@launchpad.unc.edu -- The opinions expressed are not necessarily those of the University of North Carolina at Chapel Hill, the Campus Office for Information Technology, or the Experimental Bulletin Board Service. internet: laUNChpad.unc.edu or 152.2.22.80 Newsgroups: alt.suit.att-bsdi From: bzs@world.std.com (Barry Shein) Subject: Re: Isn't NET2 now almost certainly free? In-Reply-To: Fred.Gray@launchpad.unc.edu's message of Sun, 11 Apr 1993 02:35:43 GMT Message-ID: Sender: bzs@world.std.com (Barry Shein) Organization: The World References: <1993Apr11.023543.9647@samba.oit.unc.edu> Date: Sun, 11 Apr 1993 04:47:49 GMT Lines: 53 From: Fred.Gray@launchpad.unc.edu (Fred Gray) >The court has now declared twice that USL does not own a valid copyright in >32V UNIX. The refusal of an injunction only stated that USL isn't *likely* to succeed in asserting copyright on 32V. The judge did not (and was not asked to) rule on the specific issue. However, yes, he came about as close to saying this as you can without actually ruling. The game is that for USL to get an injunction (i.e. stop BSDI from selling) the judge has provide an intelligent guess as to whether or not USL's case will ultimately be successful (among other criteria.) >Therefore, whether USL wins or loses the lawsuit, BSD-NET2, 386BSD, and >BSD/386 will all be legally distributable without a license from USL since >USL will have forfeited all its proprietary rights in one way or another. No, not quite, it's only "therefore" if the final decision is that USL has no copyright etc. At this point the judge has only stated that it doesn't seem likely they (USL) will succeed so he's refused to issue an injunction. It's not even that simple because even IF USL did manage somehow to succeed in asserting a copyright on 32V (unlikely) they still have to convince a court that Net/2 et al infringes on that copyright which is even more unlikely, which the judge basically says in the same ruling. It's just that if USL probably has no copyright on 32V then guessing whether or not Net/2 might be infringing on this non-existant copyright starts to get a bit thin as a legal exercise. Anyhow, it ain't over til it's over...but other than pulling something purely sleazy it does look like USL's prospects are pretty poor at this point. However, no doubt USL's hired guns (attorneys, they're using an outside law firm) are probably telling them to keep pushing (i.e. keep running up those legal bills Roel, eventually you'll figure it out!) The only possible rational interpretation of USL's behavior at this point (after the injunction was thrown out USL filed a reconsideration, basically a motion to request that the judge admit he was wrong when he threw out the injunction, heh, fat chance, wonder what that cost them?) is that USL *wants* to lose at this point, but must have the court say they lost, they can't just give up. What a sick, sick thing tho, a full employment act for some attorneys basically, and we wonder why the USA is going down the tubes. -- -Barry Shein Software Tool & Die | bzs@world.std.com | uunet!world!bzs Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD From: vixie@pa.dec.com (Paul A Vixie) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 10 Apr 93 21:24:22 Organization: DEC Network Systems Lab Lines: 14 Message-ID: References: <1993Apr11.023543.9647@samba.oit.unc.edu> NNTP-Posting-Host: cognition.pa.dec.com In-reply-to: bzs@world.std.com's message of Sun, 11 Apr 1993 04:47:49 GMT But wait, it gets better. If USL ends up believing that 32V isn't covered by copyright or trade secret, then it will eventually become possible to publish 4.3bsd in its entirety -- including the modules which are rife with 32V code, like the VAX low-level stuff. There may in the end be no practical reason for CSRG to release 4.4bsd-lite instead of just 4.4bsd-complete. It may end up not being neccessary for folks to have a valid 32V or V7 license in order to own a copy of all of the stuff CSRG has ever done. We shall see. Disclaimer: my employers do not know I'm posting this. I don't speak for them. -- Paul Vixie, DEC Network Systems Lab Palo Alto, California, USA "Don't be a rebel, or a conformist; decwrl!vixie they're the same thing, anyway. Find vixie!paul your own path, and stay on it." -me Newsgroups: alt.suit.att-bsdi From: palowoda@netcom.com (Bob Palowoda) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: Organization: NETCOM On-line Communication Services (408 241-9760 guest) X-Newsreader: TIN [version 1.1 PL8] References: Date: Sun, 11 Apr 1993 08:07:02 GMT Lines: 23 Barry Shein (bzs@world.std.com) wrote: : The only possible rational interpretation of USL's behavior at this : point (after the injunction was thrown out USL filed a : reconsideration, basically a motion to request that the judge admit he : was wrong when he threw out the injunction, heh, fat chance, wonder : what that cost them?) is that USL *wants* to lose at this point, but : must have the court say they lost, they can't just give up. What a : sick, sick thing tho, a full employment act for some attorneys : basically, and we wonder why the USA is going down the tubes. Sick yes, but I believe they can write it off. It appears USL is in a sell and scribble off mode. Just an opinion. ---Bob palowoda@netcom.com -- --- Bob Palowoda palowoda@netcom.com Newsgroups: alt.suit.att-bsdi From: bzs@world.std.com (Barry Shein) Subject: Re: Isn't NET2 now almost certainly free? In-Reply-To: palowoda@netcom.com's message of Sun, 11 Apr 1993 08:07:02 GMT Message-ID: Sender: bzs@world.std.com (Barry Shein) Organization: The World References: Date: Sun, 11 Apr 1993 22:27:29 GMT Lines: 49 From: palowoda@netcom.com (Bob Palowoda) >Barry Shein (bzs@world.std.com) wrote: > >: The only possible rational interpretation of USL's behavior at this >: point (after the injunction was thrown out USL filed a >: reconsideration, basically a motion to request that the judge admit he >: was wrong when he threw out the injunction, heh, fat chance, wonder >: what that cost them?) is that USL *wants* to lose at this point, but >: must have the court say they lost, they can't just give up. What a >: sick, sick thing tho, a full employment act for some attorneys >: basically, and we wonder why the USA is going down the tubes. > > Sick yes, but I believe they can write it off. It appears USL > is in a sell and scribble off mode. Just an opinion. If you mean "write it off their taxes": A) That only gives you about a 30% discount, it just reduces the taxable gross. B) In order to "write it off" their taxes they (USL) first need profits. You can only "write off" against profits. USL, to my knowledge, has never shown a profit and isn't likely to in the near future, certainly nothing like they're spending on these lawyers. Ok, perhaps nitpicky, but we imbue this phrase "write it off" with such magic, as if it's an answer, "oh they'll just write it off". As someone who operates a business I assure you there's almost nothing I get to "just write off". Either it's an ultimately profitable expense (e.g. buying capital equipment I expect to make income off of) or something like that, or it's just a waste of money that perhaps I can waste 30% less of if I'm not taxed on it. So goody, one gets to waste only 70% of the money, small comfort. In my experience about 90% of what companies spend on lawyers is a waste, and this USL suit is a case in point. They'd be better off spending the money on a more competitive product and getting their own (management) house in order. Being able to reduce their taxes on their non-existant profits won't help them and is a poor, poor excuse to waste money. -- -Barry Shein Software Tool & Die | bzs@world.std.com | uunet!world!bzs Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD From: jfc@athena.mit.edu (John F Carr) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 11 Apr 1993 13:44:04 GMT Organization: Massachusetts Institute of Technology Lines: 18 Message-ID: <1q97b4INNl87@senator-bedfellow.MIT.EDU> References: <1993Apr11.023543.9647@samba.oit.unc.edu> NNTP-Posting-Host: achates.mit.edu In article bzs@world.std.com (Barry Shein) writes: >(after the injunction was thrown out USL filed a >reconsideration, basically a motion to request that the judge admit he >was wrong when he threw out the injunction, heh, fat chance, wonder >what that cost them?) From BSDI press releas, it sounds like USL did have a reason to ask for reconsideration: the judge made a factual error: Although the Court amended its prior factual finding as to the number of copies distributed, the Court found the number was not critical to its ruling on the issue of publication without notice. -- John Carr (jfc@athena.mit.edu) Newsgroups: alt.suit.att-bsdi From: witr@rwwa.COM (Robert Withrow) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr11.212526.73@rwwa.COM> Sender: news@rwwa.COM (News Administrator) Nntp-Posting-Host: spooky Reply-To: witr@rwwa.com Organization: R.W. Withrow Associates References: <1993Apr11.023543.9647@samba.oit.unc.edu> Distribution: usa Date: Sun, 11 Apr 1993 21:25:26 GMT Lines: 14 In article , bzs@world.std.com (Barry Shein) writes: | The only possible rational interpretation of USL's behavior at this | point (after the injunction was thrown out USL filed a | reconsideration, basically a motion to request that the judge admit he | was wrong when he threw out the injunction, heh, fat chance, wonder | what that cost them?) is that USL *wants* to lose at this point,[...] No. Usually this is done to prepare for an appeal. I don't have a clue as to what arguments they might put forward in an appeal, but it is pretty obvious they intend to appeal the ruling... -- Robert Withrow, Tel: +1 617 598 4480, Fax: +1 617 598 4430, Net: witr@rwwa.COM R.W. Withrow Associates, 21 Railroad Ave, Swampscott MA 01907-1821 USA Newsgroups: alt.suit.att-bsdi From: scs@iti.org (Steve Simmons) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: Sender: usenet@iti.org (Hela USENET News System) Nntp-Posting-Host: wotan.iti.org Organization: Industrial Technology Institute References: <1993Apr11.023543.9647@samba.oit.unc.edu> Date: Sun, 11 Apr 1993 15:49:47 GMT Lines: 45 Fred.Gray@launchpad.unc.edu (Fred Gray) writes: >Have I missed anything important in the following logic? Uh, yes. >The court has now declared twice that USL does not own a valid copyright in >32V UNIX. Close, but no cigar. Please bear with a bit of backtracking. USL went to the court and said (among other things) that BSDI was using 32V improperly because (among other things) it was copyright USL. They asked the court to block BSDI from selling and shipping. This was the preliminary injunction that they asked for. The court looked over the request and did some *preliminary* investigation (took testimony) on the various claims. The point of the testimony was not to decide the case, but to decide if the case was good enough to warrant the injunction. After hearing the testimony, the judge ruled that the case was not strong enough to support an injunction. In that ruling the judge made various comments about the strengths and weaknesses of the case, icluding (IMHO) some fairly strong statements that USL had no case on copyright. However, these are comments rather rulings. The actual case is yet to be decided. >The court has declared (twice) that >AT&T ceded all involved software patents to the public domain >many years ago. I read the statement fairly closely and saw no wording to that effect. USL (actually Bell Labs) has put at least one patent into the public domain, but in all my readings of the suit materials I saw neither a claim of patent violation by USL nor a comment by the court. >It is impossible to sue another party for misappropriating a trade secret >without eventually disclosing that trade secret and therefore losing any >protection under trade secret laws. Yes and no. According to the ITI corporate lawyer it is difficult but not impossible. And there are cases where such a Phyrric victory is desireable -- for instance, a small manufacturer taking on GM. Yes, you lose the secret and your business. But you have presumably already lost both, and in return you get huge piles of money. -- "Two wrongs don't make a right, but three lefts do." - me Newsgroups: alt.suit.att-bsdi From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr12.203633.19944@fcom.cc.utah.edu> Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1993Apr11.023543.9647@samba.oit.unc.edu> Date: Mon, 12 Apr 93 20:36:33 GMT Lines: 67 In article <1993Apr11.023543.9647@samba.oit.unc.edu> Fred.Gray@launchpad.unc.edu (Fred Gray) writes: >Have I missed anything important in the following logic? [ ... ] >It is impossible to sue another party for misappropriating a trade secret >without eventually disclosing that trade secret and therefore losing any >protection under trade secret laws. > >Therefore, whether USL wins or loses the lawsuit, BSD-NET2, 386BSD, and >BSD/386 will all be legally distributable without a license from USL since >USL will have forfeited all its proprietary rights in one way or another. [ ... ] >Therefore, it is almost certain that the NET2 code will be freed. Why then >has CMU still not released BSDSS version 5? Why are workstation vendors >still afraid to port 386BSD to their platforms and take USL's royalties for >themselves? Not to rain on your parade, but one need only prove infringement on a single trade secret to win. If a work embodies multiple trade secrets, then it's possible to fight off many infringers by spending one trade secret per suit (assuming an in court resoloution). Disclosure only applies to an in-court settlement, where the trade secret is part of the evidence of infringement (the only exception to this being information stricken from public record but considered in the decision as a result of national security issues). If USL were to win a trade secret judgement against BSDI, they would be able to force an out of court (non-disclosing) settlement in the future with the leverage the in-court settlement would provide, as long as the settlement were slightly less expensive than the foregone court decision would be (assuming appeals occur to the point of binding case law, or, alternately, the same venue is used, yielding implied case law). As long as USL has 2 or more trade secrets in the code (including the one they will have to spend to get the decision), they are quite capable of holding out indefinitely, unless there is someone willing to push a court case to the point of disclosure for all trade secrets USL holds in reserve. Anyone not distributing Net/2 (or 32V) derived code at this time is simply being prudent. Whether this remains so depends on the final decision reached. As to "Why are workstation vendors still afraid to port 386BSD to their latforms and take USL's royalties for themselves?", I think I can answer this in two words: government contracts. 386BSD has not been run through (and currently could not pass) Posix and SVID certification, making it miss CLIN 1 on most current government contracts (contract line item number 1). In addition, there is the issue of GOSIP compliance, which 386BSD only partially meets. It does *not* have sufficient security (without crypt) for most contracts. I can't speak for the other OS's you mentioned, but I believe the same is true there as well. The case is neither out of the woods nor satisfactorily resolved to allow commercial use of Net/2 code without an AT&T license at this time. 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 From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr13.081537.4405@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: <1993Apr11.023543.9647@samba.oit.unc.edu> <1993Apr12.203633.19944@fcom.cc.utah.edu> Date: Tue, 13 Apr 1993 08:15:37 GMT Lines: 20 In article <1993Apr12.203633.19944@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >Not to rain on your parade, but one need only prove infringement on a >single trade secret to win... The case is neither out of the woods >nor satisfactorily resolved to allow commercial use of Net/2 code >without an AT&T license at this time. Are you seriously contending that there could be anything in Net/2 that is not now generally known in the industry? If you are saying that anyone's trade secrets could possibly subsist in Net/2, then you must be relying on a theory of trade secrecy with which I am not familiar. The copyright status of Net/2 is still not (quite) settled, but I'm surprised that people still debate its trade secret status: Net/2 is now public knowledge, even by trade secrecy standards. -- Jim Olsen | "Tchaikovsky. Was he the tortured soul who poured out olsen@mit.edu | his immortal longings into stately passages of music, | or was he just a old poof who wrote tunes?" - M.P. Newsgroups: alt.suit.att-bsdi From: guyd@austin.ibm.com (Guy Dawson) Subject: Re: Isn't NET2 now almost certainly free? Originator: guyd@pal500.austin.ibm.com Sender: news@austin.ibm.com (News id) Message-ID: Date: Tue, 13 Apr 1993 14:07:29 GMT References: <1993Apr11.023543.9647@samba.oit.unc.edu> <1993Apr12.203633.19944@fcom.cc.utah.edu> <1993Apr13.081537.4405@mintaka.lcs.mit.edu> Organization: IBM Austin Lines: 36 In article <1993Apr13.081537.4405@mintaka.lcs.mit.edu>, olsen@HING.LCS.MIT.EDU (James Olsen) writes: > In article <1993Apr12.203633.19944@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: > > >Not to rain on your parade, but one need only prove infringement on a > >single trade secret to win... The case is neither out of the woods > >nor satisfactorily resolved to allow commercial use of Net/2 code > >without an AT&T license at this time. > > Are you seriously contending that there could be anything in Net/2 > that is not now generally known in the industry? If you are saying > that anyone's trade secrets could possibly subsist in Net/2, then you > must be relying on a theory of trade secrecy with which I am not > familiar. This is not my reading of what Terry said - Terry is just stating a point of law. *IF* there are 2 or trade secrets then there could be problems. After the two recent rulings ( denial of USLs injunction ) it is *probable* that there are no trade secrets in Net/2 but a court has not yet actually said so. > > The copyright status of Net/2 is still not (quite) settled, but I'm > surprised that people still debate its trade secret status: Net/2 > is now public knowledge, even by trade secrecy standards. > -- > Jim Olsen | "Tchaikovsky. Was he the tortured soul who poured out > olsen@mit.edu | his immortal longings into stately passages of music, > | or was he just a old poof who wrote tunes?" - M.P. Guy -- -- ----------------------------------------------------------------------------- Guy Dawson - Hoskyns Group Plc. guyd@hoskyns.co.uk Tel Hoskyns UK - 71 251 2128 guyd@austin.ibm.com Tel IBM Austin USA - 512 838 3377 Newsgroups: alt.suit.att-bsdi From: jcargill@oka.cs.wisc.edu (Jon Cargille) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr15.151300.14584@cs.wisc.edu> Sender: news@cs.wisc.edu (The News) Organization: Univ. of Wisconsin CS Dept References: <1993Apr11.023543.9647@samba.oit.unc.edu> <1993Apr12.203633.19944@fcom.cc.utah.edu> <1993Apr13.081537.4405@mintaka.lcs.mit.edu> Date: Thu, 15 Apr 1993 15:13:00 GMT Lines: 52 In article guyd@austin.ibm.com (Guy Dawson) writes: > >In article <1993Apr13.081537.4405@mintaka.lcs.mit.edu>, olsen@HING.LCS.MIT.EDU (James Olsen) writes: >> In article <1993Apr12.203633.19944@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >> >> >Not to rain on your parade, but one need only prove infringement on a >> >single trade secret to win... The case is neither out of the woods >> >nor satisfactorily resolved to allow commercial use of Net/2 code >> >without an AT&T license at this time. >> >> Are you seriously contending that there could be anything in Net/2 >> that is not now generally known in the industry? If you are saying >> that anyone's trade secrets could possibly subsist in Net/2, then you >> must be relying on a theory of trade secrecy with which I am not >> familiar. > >This is not my reading of what Terry said - Terry is just stating a >point of law. *IF* there are 2 or trade secrets then there could be >problems. After the two recent rulings ( denial of USLs injunction ) >it is *probable* that there are no trade secrets in Net/2 but a court >has not yet actually said so. > I agree that Terry was just stating a point of law. But I disagree that the point can even apply to the usl suit. The idea behind this strategy is that you can *successfully* attack one competitor who has infringed on your trade secrets, without giving up *all* your trade secrets by revealing them in court. To put it another way, if you win in court, it's not a pyrrhic victory; you still have a big club (a potential lawsuit) to wield against other competitors. However, in the USL/BSDI/UCB suit, I don't see how this applies. The code has been freely accessible by the public for too long to consider anything in the code to still be a "secret". Trade secrets still could bear on the case, however; USL could seek punitive damages from UCB for revealing their "secrets", assuming that they can establish any existed at the time Net/2 was released. But I don't see how they could go after anyone else in the future on this grounds. After public consumption, they're not trade secrets any more. (Disclaimer: My opinion; I'm not a lawyer; YMMV) Jon -- -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Jon Cargille jcargill@cs.wisc.edu Want your .sig compressed? Reasonable rates and fast turnaround. Call today! Newsgroups: alt.suit.att-bsdi From: guyd@austin.ibm.com (Guy Dawson) Subject: Re: Isn't NET2 now almost certainly free? Originator: guyd@pal500.austin.ibm.com Sender: news@austin.ibm.com (News id) Message-ID: Date: Thu, 15 Apr 1993 20:27:25 GMT References: <1993Apr11.023543.9647@samba.oit.unc.edu> <1993Apr12.203633.19944@fcom.cc.utah.edu> <1993Apr13.081537.4405@mintaka.lcs.mit.edu> <1993Apr15.151300.14584@cs.wisc.edu> Organization: IBM Austin Lines: 94 In article <1993Apr15.151300.14584@cs.wisc.edu>, jcargill@oka.cs.wisc.edu (Jon Cargille) writes: > In article guyd@austin.ibm.com (Guy Dawson) writes: > > > >In article <1993Apr13.081537.4405@mintaka.lcs.mit.edu>, olsen@HING.LCS.MIT.EDU (James Olsen) writes: > >> In article <1993Apr12.203633.19944@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: > >> > >> >Not to rain on your parade, but one need only prove infringement on a > >> >single trade secret to win... The case is neither out of the woods > >> >nor satisfactorily resolved to allow commercial use of Net/2 code > >> >without an AT&T license at this time. > >> > >> Are you seriously contending that there could be anything in Net/2 > >> that is not now generally known in the industry? If you are saying > >> that anyone's trade secrets could possibly subsist in Net/2, then you > >> must be relying on a theory of trade secrecy with which I am not > >> familiar. > > > >This is not my reading of what Terry said - Terry is just stating a > >point of law. *IF* there are 2 or trade secrets then there could be > >problems. After the two recent rulings ( denial of USLs injunction ) > >it is *probable* that there are no trade secrets in Net/2 but a court > >has not yet actually said so. > > > > I agree that Terry was just stating a point of law. But I disagree > that the point can even apply to the usl suit. IMHO mode on! One of the important parts of the USL suit is just what consitutes limited distribution. If a limited ( and controlled ? ) number of people have seen the trade secret the trade secret is just that. If you claim a trade secret but do not prevent access then you don't get any trade secret protection. I don't see how allowing source code access for students can be considered limited distribution. Students may well be required to examin source code as part of their courses. USL did not select the students, they are self selected. This boils down to USL saying that the only people who are allowed to examin their source are young people interested enough in computers to take a CS course! Limited? I think not! So I think we a agreeded on this. When I read Terrys post, I did not come to the opinion that he felt that the point of law applies either. So I think we all agree on this. The judge has yet to rule... > > The idea behind this strategy is that you can *successfully* attack > one competitor who has infringed on your trade secrets, without giving > up *all* your trade secrets by revealing them in court. To put it > another way, if you win in court, it's not a pyrrhic victory; you > still have a big club (a potential lawsuit) to wield against other > competitors. Yep. > > However, in the USL/BSDI/UCB suit, I don't see how this applies. The > code has been freely accessible by the public for too long to consider > anything in the code to still be a "secret". See above. I don't think it actually matters that the code is *NOW* accessible to the public. What matters was how one could get a hold of the code when the license deals were done. > > Trade secrets still could bear on the case, however; USL could seek > punitive damages from UCB for revealing their "secrets", assuming that > they can establish any existed at the time Net/2 was released. But I > don't see how they could go after anyone else in the future on this > grounds. After public consumption, they're not trade secrets any > more. > > (Disclaimer: My opinion; I'm not a lawyer; YMMV) Ditto! IMHO mode off > > Jon Guy -- -- ----------------------------------------------------------------------------- Guy Dawson - Hoskyns Group Plc. guyd@hoskyns.co.uk Tel Hoskyns UK - 71 251 2128 guyd@austin.ibm.com Tel IBM Austin USA - 512 838 3377 Newsgroups: alt.suit.att-bsdi From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr15.202554.4217@fcom.cc.utah.edu> Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1993Apr13.081537.4405@mintaka.lcs.mit.edu> <1993Apr15.151300.14584@cs.wisc.edu> Date: Thu, 15 Apr 93 20:25:54 GMT Lines: 107 In article <1993Apr15.151300.14584@cs.wisc.edu> jcargill@oka.cs.wisc.edu (Jon Cargille) writes: >>> In article <1993Apr12.203633.19944@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >>> >Not to rain on your parade, but one need only prove infringement on a >>> >single trade secret to win... The case is neither out of the woods >>> >nor satisfactorily resolved to allow commercial use of Net/2 code >>> >without an AT&T license at this time. > >I agree that Terry was just stating a point of law. But I disagree >that the point can even apply to the usl suit. > >The idea behind this strategy is that you can *successfully* attack >one competitor who has infringed on your trade secrets, without giving >up *all* your trade secrets by revealing them in court. To put it >another way, if you win in court, it's not a pyrrhic victory; you >still have a big club (a potential lawsuit) to wield against other >competitors. This is exactly what I meant. The question is whether or not the Net/2 code can be enjoined from further distribution because of one of many trade secrets which must become a matter of public records, and if so, whether this constitutes a "necessary and sufficient protection" of any remaining trade secrets in addition to the one revealed as part of the court record. If som then the revelation of the trade secret "spent" getting the decision is the result of the court record being public rather than Net/2 being public... further trade secrets in Net/2 are not revealed in this process. >However, in the USL/BSDI/UCB suit, I don't see how this applies. The >code has been freely accessible by the public for too long to consider >anything in the code to still be a "secret". Now this I have to question as you questioned me: what definition are *you* using for trade secrets? To be revealed in this fashion and then to be *usable* requires a clear channel to the user of the secret; any defense of a trade secret is an argument that no such channel exists... but provides such a channel in the form of the court record, making a one-secret victory pyrric -- if there is the assumption of multiple secrets, then the victory is not pyrric and may be used as a club. >Trade secrets still could bear on the case, however; USL could seek >punitive damages from UCB for revealing their "secrets", assuming that >they can establish any existed at the time Net/2 was released. But I >don't see how they could go after anyone else in the future on this >grounds. After public consumption, they're not trade secrets any >more. They are not secrets if they are a matter of public record; and an FTP site does not constitute public record. Yes, all trade secrets revealed to be in the code as part of proving infringement are no longer usable as a threat, however USL need not spend all their clubs in one case. A decision of infringement would be likely to result in a settlement that includes disallowing further distribution of "cleaned" releases, and this protects the remaining secrets. Are you willing to personally fight USL for your copy of Net/2 to the tune of umpteen million dollars, or would you sign a paper and pay a "license fee" (thus ensuring "necessary and sufficient protection" and you membership in "a select group"), and incidently ensuring trade secret status for the remaining trade secrets in Net/2? If there were (say) 10 legally recognized and defensible trade secrets belonging to USL in the Net/2 code, it would take 10 suits of the magnitude of the BSDI suit even if Judge Debevoise is correct about the indefensibility of the 32V copyright (still a question). ] In summary, I find that I am unable to ascertain whether ] any aspect of Net2 or BSD/386, be it an individual line of code or ] the overall system organization, deserves protection as Plaintiff's ] trade secret. Since Plaintiff has failed to provide enough ] evidence to establish a "reasonable probability" that Net2 or ] BSD/386 contain trade secrets, I find that Plaintiff has failed to ] demonstrate a likelihood of success on the merits of its claim for ] misappropriation of trade secrets. No preliminary injunction will ] issue. That he was "unable to ascertain" trade secret defensibility and that he did not grant a summary dismissal both leave the door open for USL to prove trade secret infringement. I'll admit that the arguments against the 32V copyright are pretty convincing, but the "preponderance of evidence" rule could be met for a trade secret infringement by the disclosure of a single trade secret into the court record. You have to admit that nearly any such disclosure will probably not impact the currently used technologies in products like SVR4, so most of the trade secrets in 32V could easily be used simply as counters with little risk in the disclosure; the question is whether USL is willing to pay the price, and picking a trade secret that requires the least convincing. I think that you are confusing the legal definition of "trade secret" with the coloquial definition of "secret" when you say "Net/2 discloses the trade secrets making them not trade secrets". The "secret" argument relies on USL's inability to do damage control (admitted); I don't believe that the "trade secret" argument makes that requirement. >(Disclaimer: My opinion; I'm not a lawyer; YMMV) Disclaimer II: I'm not a lawyer either. 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 From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr16.213816.16075@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: <1993Apr15.151300.14584@cs.wisc.edu> <1993Apr15.202554.4217@fcom.cc.utah.edu> Date: Fri, 16 Apr 1993 21:38:16 GMT Lines: 26 In article <1993Apr15.202554.4217@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >I think that you are confusing the legal definition of "trade secret" >with the coloquial definition of "secret" when you say "Net/2 discloses >the trade secrets making them not trade secrets". Hmm. It seems that there's some confusion here, so let me try to state my argument in a very simple form, as a syllogism: Premise 1: Information which becomes generally known in the relevant industry loses any trade-secret status it might have had. Premise 2: Net/2 has become generally known in the systems software industry. Conclusion: Net/2 now contains no trade secrets. It seems that you dispute at least one of these premises. Which one? -- Jim Olsen | "Then Kolokolo bird said, with a mournful cry, olsen@mit.edu | `Go to the banks of the great grey-green, greasy | Limpopo River, and find out.'" -- Kipling Newsgroups: alt.suit.att-bsdi From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr18.221157.6353@fcom.cc.utah.edu> Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1993Apr15.151300.14584@cs.wisc.edu> <1993Apr15.202554.4217@fcom.cc.utah.edu> <1993Apr16.213816.16075@mintaka.lcs.mit.edu> Date: Sun, 18 Apr 93 22:11:57 GMT Lines: 36 In article <1993Apr16.213816.16075@mintaka.lcs.mit.edu> olsen@HING.LCS.MIT.EDU (James Olsen) writes: >In article <1993Apr15.202554.4217@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: > >>I think that you are confusing the legal definition of "trade secret" >>with the coloquial definition of "secret" when you say "Net/2 discloses >>the trade secrets making them not trade secrets". > >Hmm. It seems that there's some confusion here, so let me try to >state my argument in a very simple form, as a syllogism: > >Premise 1: > Information which becomes generally known in the relevant industry > loses any trade-secret status it might have had. > >Premise 2: > Net/2 has become generally known in the systems software industry. > >Conclusion: > Net/2 now contains no trade secrets. > > >It seems that you dispute at least one of these premises. Which one? #1. I don't have Black's Law here right now, but I dispute #1. 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 ------------------------------------------------------------------------------- From: max@underg.ucf.org (Max Cray) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <7Hg92B1w165w@underg.ucf.org> Date: Sun, 18 Apr 93 21:52:29 CDT References: <1993Apr18.221157.6353@fcom.cc.utah.edu> Organization: Underground Computing Foundation Lines: 13 terry@cs.weber.edu (A Wizard of Earth C) writes: > >Premise 1: > > Information which becomes generally known in the relevant industry > > loses any trade-secret status it might have had. > > #1. I don't have Black's Law here right now, but I dispute #1. I am confused. Can't you get the bsd sources from ftp.uu.net and many other sources? How then could it not be generally known? -- max@underg.ucf.org (Max Cray) Newsgroups: alt.suit.att-bsdi From: guyd@austin.ibm.com (Guy Dawson) Subject: Re: Isn't NET2 now almost certainly free? Originator: guyd@pal500.austin.ibm.com Sender: news@austin.ibm.com (News id) Message-ID: Date: Mon, 19 Apr 1993 14:52:12 GMT References: <1993Apr18.221157.6353@fcom.cc.utah.edu> <7Hg92B1w165w@underg.ucf.org> Organization: IBM Austin Lines: 29 In article <7Hg92B1w165w@underg.ucf.org>, max@underg.ucf.org (Max Cray) writes: > terry@cs.weber.edu (A Wizard of Earth C) writes: > > > >Premise 1: > > > Information which becomes generally known in the relevant industry > > > loses any trade-secret status it might have had. > > > > #1. I don't have Black's Law here right now, but I dispute #1. > > I am confused. Can't you get the bsd sources from ftp.uu.net and many > other sources? How then could it not be generally known? The point here is ( IMHO ) that just because someone else blabbed it does not mean you can... It's not a claim that Net/2 is not available but its being available does not necessarly remove trade secrets. > > -- > max@underg.ucf.org (Max Cray) Guy -- -- ----------------------------------------------------------------------------- Guy Dawson - Hoskyns Group Plc. guyd@hoskyns.co.uk Tel Hoskyns UK - 71 251 2128 guyd@austin.ibm.com Tel IBM Austin USA - 512 838 3377 From: karl@genesis.MCS.COM (Karl Denninger) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 19 Apr 1993 19:30:26 -0500 Organization: MCSNet, Chicago, IL Lines: 37 Message-ID: <1qvg72$jqu@genesis.MCS.COM> References: <1993Apr18.221157.6353@fcom.cc.utah.edu> <7Hg92B1w165w@underg.ucf.org> NNTP-Posting-Host: localhost.mcs.com In article guyd@austin.ibm.com (Guy Dawson) writes: > >In article <7Hg92B1w165w@underg.ucf.org>, max@underg.ucf.org (Max Cray) writes: >> terry@cs.weber.edu (A Wizard of Earth C) writes: >> >> > >Premise 1: >> > > Information which becomes generally known in the relevant industry >> > > loses any trade-secret status it might have had. >> > >> > #1. I don't have Black's Law here right now, but I dispute #1. >> > >The point here is ( IMHO ) that just because someone else blabbed it does >not mean you can... > >It's not a claim that Net/2 is not available but its being available does >not necessarly remove trade secrets. You're wrong. Look at trade secret law, at least in the US, sometime. If the material becomes un-secret, particularly if it becomes so due to the owner's malfeasance (or nonfeasance) then it is no longer a secret, and the material value for legal purposes disappears. This is why people are so incredibly meticulous about non-disclosures and . If you fail to raise a stink once you know that the secret is being disseminated you lose your protection. AT&T / USL certainly knew that NET2 was available for before they did anything of substance about it -- and thus, they have likely lost trade secret status in that software, if they had any to begin with. -- Karl Denninger (karl@genesis.MCS.COM) | You can never please everyone except Data Line: [+1 312 248-0900] | by bankrupting yourself. LIVE Internet in Chicago; an MCSNET first! Newsgroups: alt.suit.att-bsdi From: guyd@austin.ibm.com (Guy Dawson) Subject: Re: Isn't NET2 now almost certainly free? Originator: guyd@pal500.austin.ibm.com Sender: news@austin.ibm.com (News id) Message-ID: Date: Tue, 20 Apr 1993 15:05:37 GMT References: <1993Apr18.221157.6353@fcom.cc.utah.edu> <7Hg92B1w165w@underg.ucf.org> <1qvg72$jqu@genesis.MCS.COM> Organization: IBM Austin Lines: 56 In article <1qvg72$jqu@genesis.MCS.COM>, karl@genesis.MCS.COM (Karl Denninger) writes: > In article guyd@austin.ibm.com (Guy Dawson) writes: > > > >In article <7Hg92B1w165w@underg.ucf.org>, max@underg.ucf.org (Max Cray) writes: > >> terry@cs.weber.edu (A Wizard of Earth C) writes: > >> > >> > >Premise 1: > >> > > Information which becomes generally known in the relevant industry > >> > > loses any trade-secret status it might have had. > >> > > >> > #1. I don't have Black's Law here right now, but I dispute #1. > >> > > > >The point here is ( IMHO ) that just because someone else blabbed it does > >not mean you can... > > > >It's not a claim that Net/2 is not available but its being available does > >not necessarly remove trade secrets. ^^^^^^^^^^ This word is important! > > You're wrong. My statement is qualified! > > Look at trade secret law, at least in the US, sometime. If the material > becomes un-secret, particularly if it becomes so due to the owner's > malfeasance (or nonfeasance) then it is no longer a secret, and the > material value for legal purposes disappears. So is yours ( partialy )! In fact, we agree! > > This is why people are so incredibly meticulous about non-disclosures and > . If you fail to raise a stink once you know that > the secret is being disseminated you lose your protection. AT&T / USL > certainly knew that NET2 was available for before they did anything > of substance about it -- and thus, they have likely lost trade secret > status in that software, if they had any to begin with. > > -- > Karl Denninger (karl@genesis.MCS.COM) | You can never please everyone except > Data Line: [+1 312 248-0900] | by bankrupting yourself. > LIVE Internet in Chicago; an MCSNET first! > Guy -- -- ----------------------------------------------------------------------------- Guy Dawson - Hoskyns Group Plc. guyd@hoskyns.co.uk Tel Hoskyns UK - 71 251 2128 guyd@austin.ibm.com Tel IBM Austin USA - 512 838 3377 Newsgroups: alt.suit.att-bsdi From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr20.014222.25897@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: <1993Apr15.202554.4217@fcom.cc.utah.edu> <1993Apr16.213816.16075@mintaka.lcs.mit.edu> <1993Apr18.221157.6353@fcom.cc.utah.edu> Date: Tue, 20 Apr 1993 01:42:22 GMT Lines: 44 In article <1993Apr18.221157.6353@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) disputes my contention that: >> Information which becomes generally known in the relevant industry >> loses any trade-secret status it might have had. In making the above statement, I relied on a reading of _The_Law_of_Trade_Secrets_ by A.E. Turner, published by Sweet & Maxwell, London, 1962. Here are some extracts (emphasis mine): "It is well established in the law on the subject that in order that a property right may inhere in a secret process or formula, it must be kept secret ... if the facts pertaining to the matter are a subject of _general_knowledge_in_the_trade_, then any property right has evaporated." - National Starch Products v. Polymer Industries, 79 NYS 2d 357 (1948) "Certainly, a process _commonly_known_in_the_trade_ is not a secret and can't be and will not be protected. ...In other words, the knowledge of it doesn't have to be general, as long as those within the trade have possession of it or ready access to it." - Monsanto Chemical Co. v. Miller, 118 USPQ 74 (1958) "...a substantial element of secrecy must exist. Matters of public knowledge or of _general_knowledge_in_an_industry_ are not secret..." - Mycalex Corp. of America v. Pemco Corp., 64 F.Supp. 420 (1946) "...matters which are _generally_known_in_the_trade_ or readily discernible by those in the trade cannot be made secret be being so labelled in an agreement." - Sarkes Tarzian Inc. v. Audio Devices Inc., 166 F.Supp. 250 (1958) I hope the general pattern is clear. While some of these citations are getting old, they seem to illustrate a basic point of law. If you think that the law has changed in this regard, please post the authority on which you base your belief. Disclaimers: I am not a lawyer. Obtain competent legal advice before acting on this information. Cold water wash only. Do not bleach. -- Jim Olsen | Then Kolokolo bird said, with a mournful cry, `Go to the olsen@mit.edu | banks of the great grey-green, greasy Limpopo River, all | set about with fever trees, and find out.'" -- Kipling From: ron@topaz.bds.com (Ron Natalie) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 20 Apr 1993 15:13:42 GMT Organization: BDS Systems Lines: 9 Distribution: world Message-ID: <1r13v6INN4di@topaz.bds.com> References: <1993Apr15.202554.4217@fcom.cc.utah.edu> <1993Apr16.213816.16075@mintaka.lcs.mit.edu> <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> NNTP-Posting-Host: topaz.bds.com > "...matters which are _generally_known_in_the_trade_ or readily > discernible by those in the trade cannot be made secret be being so > labelled in an agreement." > - Sarkes Tarzian Inc. v. Audio Devices Inc., 166 F.Supp. 250 (1958) Boy, if you read this one right, ***NOTHING*** in UNIX is likely to be protectable by trade secret. -Ron From: jbuck@forney.berkeley.edu (Joe Buck) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 20 Apr 1993 19:10:57 GMT Organization: U. C. Berkeley Lines: 19 Distribution: world Message-ID: <1r1hs1$g0l@agate.berkeley.edu> References: <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1r13v6INN4di@topaz.bds.com> NNTP-Posting-Host: forney.berkeley.edu >> "...matters which are _generally_known_in_the_trade_ or readily >> discernible by those in the trade cannot be made secret be being so >> labelled in an agreement." >> - Sarkes Tarzian Inc. v. Audio Devices Inc., 166 F.Supp. 250 (1958) In article <1r13v6INN4di@topaz.bds.com> ron@topaz.bds.com (Ron Natalie) writes: >Boy, if you read this one right, ***NOTHING*** in UNIX is likely to be >protectable by trade secret. Now you've got it. There's damn little in Unix (especially versions as old as 32V) that is known to those with source licenses and unknown to others skilled in the art of producing operating systems. -- Joe Buck jbuck@ohm.berkeley.edu Newsgroups: alt.suit.att-bsdi From: witr@rwwa.COM (Robert Withrow) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr22.162649.7666@rwwa.COM> Sender: news@rwwa.COM (News Administrator) Nntp-Posting-Host: spooky Reply-To: witr@rwwa.com Organization: R.W. Withrow Associates References: <1993Apr15.202554.4217@fcom.cc.utah.edu> <1993Apr16.213816.16075@mintaka.lcs.mit.edu> <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1r13v6INN4di@topaz.bds.com> Date: Thu, 22 Apr 1993 16:26:49 GMT Lines: 28 In article <1r13v6INN4di@topaz.bds.com>, ron@topaz.bds.com (Ron Natalie) writes: | > "...matters which are _generally_known_in_the_trade_ or readily | > discernible by those in the trade cannot be made secret be being so | > labelled in an agreement." | > - Sarkes Tarzian Inc. v. Audio Devices Inc., 166 F.Supp. 250 (1958) | | Boy, if you read this one right, ***NOTHING*** in UNIX is likely to be | protectable by trade secret. As a point of precision, the citation states that a known thing cannot be ``made'' secret. It thus does not apply to something that is already secret and then becomes known by virtue of a contract. In trade secret case law, it matters *how* the thing becomes ``generally known''. In some cases a known thing can still be considered to be a trade secret, depending on how it became known. Not withstanding the above, it is becomming pretty clear that the court believes that a) Most of what what constitutes NET2 was already ``known'' before being claimed as a trade secret, and b) The rest was disclosed in a way that removes trade secret status. -- Robert Withrow, Tel: +1 617 598 4480, Fax: +1 617 598 4430, Net: witr@rwwa.COM R.W. Withrow Associates, 21 Railroad Ave, Swampscott MA 01907-1821 USA Newsgroups: alt.suit.att-bsdi From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr23.142509.8396@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1r13v6INN4di@topaz.bds.com> <1993Apr22.162649.7666@rwwa.COM> Date: Fri, 23 Apr 1993 14:25:09 GMT Lines: 28 In article <1993Apr22.162649.7666@rwwa.COM> witr@rwwa.com writes: >In trade secret case law, it matters *how* the thing becomes >``generally known''. In some cases a known thing can still be >considered to be a trade secret, depending on how it became known. This flatly contradicts the first citation I gave: "It is well established in the law on the subject that in order that a property right may inhere in a secret process or formula, it must be kept secret ... if the facts pertaining to the matter are a subject of _general_knowledge_in_the_trade_, then any property right has evaporated." - National Starch Products v. Polymer Industries, 79 NYS 2d 357 (1948) If you know of cases where a. a trade secret became generally known in the trade, and b. the trade secret was not extinguished, then is it would be enlightening if you would post the relevant information about these cases. (Note that we are talking about continuing property rights in the secret after it becomes generally known, not about remedies deriving from when it was still secret.) -- Jim Olsen | Then Kolokolo bird said, with a mournful cry, `Go to the olsen@mit.edu | banks of the great grey-green, greasy Limpopo River, all | set about with fever trees, and find out.'" -- Kipling Newsgroups: alt.suit.att-bsdi From: witr@rwwa.COM (Robert Withrow) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr23.195902.11034@rwwa.COM> Sender: news@rwwa.COM (News Administrator) Nntp-Posting-Host: spooky Reply-To: witr@rwwa.com Organization: R.W. Withrow Associates References: <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1r13v6INN4di@topaz.bds.com> <1993Apr22.162649.7666@rwwa.COM> <1993Apr23.142509.8396@mintaka.lcs.mit.edu> Distribution: usa Date: Fri, 23 Apr 1993 19:59:02 GMT Lines: 43 In article <1993Apr23.142509.8396@mintaka.lcs.mit.edu>, olsen@HING.LCS.MIT.EDU (James Olsen) writes: | In article <1993Apr22.162649.7666@rwwa.COM> witr@rwwa.com writes: | | >In trade secret case law, it matters *how* the thing becomes | >``generally known''. In some cases a known thing can still be | >considered to be a trade secret, depending on how it became known. | | This flatly contradicts the first citation I gave: | | "It is well established in the law on the subject that in order that | a property right may inhere in a secret process or formula, it | must be kept secret ... if the facts pertaining to the matter are | a subject of _general_knowledge_in_the_trade_, then any property | right has evaporated." | - National Starch Products v. Polymer Industries, 79 NYS 2d 357 (1948) | | If you know of cases where | a. a trade secret became generally known in the trade, and | b. the trade secret was not extinguished, | then is it would be enlightening if you would post the relevant | information about these cases. I don't have a citation that suits those exact parameters, although that doesn't mean there isn't one. I do know that the issue of how ``secret'' a trade secret must be ``has been considered by many courts over the years, and there has evolved no single rule quantifying the degree of secrecy required''*. I do agree, however, with your implicit assertion that no trade secret could long endure being ``generally known in the trade'' even if it became that way via misappropriation. It would all depend on how ``generally'' it was known and what kind of misappropriation was involved and what the company did to protect the secret. I think that my putting the word ``generally'' in my statement rendered it---uh---questionable. Thanks for pointing that out. *"What Every Engineer Should Know About Patents", Konold, Tittel, Frei, Stallard. -- Robert Withrow, Tel: +1 617 598 4480, Fax: +1 617 598 4430, Net: witr@rwwa.COM R.W. Withrow Associates, 21 Railroad Ave, Swampscott MA 01907-1821 USA Newsgroups: alt.suit.att-bsdi From: terry@cs.weber.edu (A Wizard of Earth C) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr20.223830.21290@fcom.cc.utah.edu> Sender: news@fcom.cc.utah.edu Organization: Weber State University (Ogden, UT) References: <1993Apr16.213816.16075@mintaka.lcs.mit.edu> <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> Date: Tue, 20 Apr 93 22:38:30 GMT Lines: 112 In article <1993Apr20.014222.25897@mintaka.lcs.mit.edu> olsen@HING.LCS.MIT.EDU (James Olsen) writes: >In article <1993Apr18.221157.6353@fcom.cc.utah.edu> terry@cs.weber.edu >(A Wizard of Earth C) disputes my contention that: > >>> Information which becomes generally known in the relevant industry >>> loses any trade-secret status it might have had. > >In making the above statement, I relied on a reading of >_The_Law_of_Trade_Secrets_ by A.E. Turner, published by Sweet & >Maxwell, London, 1962. Here are some extracts (emphasis mine): [ .. abstracts stipulated to and deleted ... ] >I hope the general pattern is clear. While some of these citations >are getting old, they seem to illustrate a basic point of law. If you >think that the law has changed in this regard, please post the >authority on which you base your belief. Let me continue to play devil's advocate for a bit: The key phrases in your citations are (my emphasis): 1) "_general_ knowledge in the trade" 2) "_commonly_ known in the trade" 3) "_general_ knowledge in an industry" 4) "_generally_ known in the trade" USLs contention is that "general", "commonly", and "generally" do not apply, as 1) The licencees constituted a "select group" within the trade, and 2) The disclosure of the code only after licensing included the licensees in the group responsible for protecting the trade secrets as a contractual obligation of the licensees. 3) Disclosure by licensees does not constitute referral of a new "non-secret" status on the disclosed trade secrets... instead, it constitutes breach of contract between licensor and licensee. Judge Debevoise sites (at the start of his opinion): ] U.S.P.Q. 855 (S.D.N.Y. 1981); Rohm and Haas Co.v. Adco Chemical ] Co., 689 F.2d 424 (3d Cir. 1982). ] According to section 757, "[a] trade secret may consist ] of any formula, pattern, device or compilation of information which ] is used in one's business, and which gives him an opportunity to ] obtain an advantage over competitors who do not know or use it." Notice the "or"----------------------------------------^^. A trade secret can remain secret even if it is known to competitors as long as it is not _used_ by competitors; as such, legal action can be brought to coerce non-use. He also states: ] On the other hand, even it Defendants are correct, it is ] not clear whether 32V is publicly available in a form suitable to ] BSDI's purposes. There is an enormous difference between an expert ] programmer sitting down with a pile of textbooks and disjointed ] segments of code to write out an operating system from scratch, and ] that same programmer downloading the operating system intact from a ] public network. In the first case, the programmer could expend ] large amounts of time writing, testing, and debugging the ] newly-created system, with an uncertain prospect of immediate ] success. But in the second case, immediate success would be ] virtually assured. Thus, even if all of the pieces of the 32V code ] had been thoroughly revealed in publicly available literature, the ] overall organization of the code might remain a trade secret unless ] it too had been disclosed. ] On the present record, however, it is impossible to ] determine whether the overall organization of Net2 has been ] disclosed. The record itself contains little information directly ] pertinent to this issue. Moreover, the parties' submissions hint ] that some of 32V's organization may already be publicly available. ^^^^----- Note: not "all". All this is saying is that he thinks it would be difficult (not impossible) to prove trade secret status for all of 32V; this is not necessary in point of fact, since USL contends 32V contains or embodies multiple trade secrets and that even if partial disclosure has taken place, not all of the secrets were of necessity compromised. This jibes with there being no notice (so far) from USL on any intent to drop their defense of 32V in general or their suit in particular. Let me reiterate from above: ] Thus, even if all of the pieces of the 32V code ] had been thoroughly revealed in publicly available literature, the ] overall organization of the code might remain a trade secret unless ] it too had been disclosed. Thus the issue of the trade secret status of Net/2 is not resolved (much to the trepidation and dismay of many). > Jim Olsen | Then Kolokolo bird said, with a mournful cry, `Go to the > olsen@mit.edu | banks of the great grey-green, greasy Limpopo River, all > | set about with fever trees, and find out.'" -- Kipling "That's 'vantage number one!" cried the Kolokolo bird; "You couldn't have done that with a mere-smear nose!" -- Kipling 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 From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr21.122111.15143@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1993Apr20.223830.21290@fcom.cc.utah.edu> Date: Wed, 21 Apr 1993 12:21:11 GMT Lines: 29 In article <1993Apr20.223830.21290@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: >USLs contention is that "general", "commonly", and "generally" do not >apply, as... >3) Disclosure by licensees does not constitute referral of a new > "non-secret" status on the disclosed trade secrets... instead, > it constitutes breach of contract between licensor and licensee. So, you're saying that Net/2 _is_ generally known, but there's some legal fiction that it isn't because USL didn't authorize its release. I'm afraid you are confounding the law which applies to specific knowledge with that applying to general knowledge. In an isolated case, one well might inquire into the way the information was acquired. General knowledge in the industry is another matter. A matter generally known in the trade simply is not and cannot be a trade secret. It doesn't matter how it became generally known. If you accept that Net/2 is, in fact, generally known in the trade, then it follows directly that any trade secrets in it are gone, evaporated, expired, extinct, defunct, and pushing up the daisies; they are ex-secrets. Disclaimers: I am not a lawyer. Obtain competent legal advice before acting on this information. Do not stare directly into laser beam. -- Jim Olsen | Then Kolokolo bird said, with a mournful cry, `Go to the olsen@mit.edu | banks of the great grey-green, greasy Limpopo River, all | set about with fever trees, and find out.'" -- Kipling Newsgroups: alt.suit.att-bsdi From: jtw@lcs.mit.edu (John Wroclawski) Subject: Re: Isn't NET2 now almost certainly free? In-Reply-To: terry@cs.weber.edu's message of Tue, 20 Apr 93 22:38:30 GMT Message-ID: Sender: news@mintaka.lcs.mit.edu Organization: MIT Home for Wayward Triumphs References: <1993Apr16.213816.16075@mintaka.lcs.mit.edu> <1993Apr18.221157.6353@fcom.cc.utah.edu> <1993Apr20.014222.25897@mintaka.lcs.mit.edu> <1993Apr20.223830.21290@fcom.cc.utah.edu> Date: Thu, 22 Apr 1993 04:20:15 GMT Lines: 49 In article <1993Apr20.223830.21290@fcom.cc.utah.edu> terry@cs.weber.edu (A Wizard of Earth C) writes: Let me continue to play devil's advocate for a bit: [...] USLs contention is that "general", "commonly", and "generally" do not apply, as [...] 3) Disclosure by licensees does not constitute referral of a new "non-secret" status on the disclosed trade secrets... instead, it constitutes breach of contract between licensor and licensee. I think you're half right. If a trade secret becomes generally known, it is lost. If the path by which it becomes known is that a party obligated by non-disclosure, license, etc. discloses the secret, then that party is liable for damages, without question. However, that doesn't change the fact that the secret is lost - the damages are precisely -because- the secret is lost, and the holder of the secret has presumably suffered some damage. [ If a party to a trade secret non-disclosure discloses the secret to some unauthorised party, but the disclosure is not wide enough to constitute making the information "generally known", then the trade secret protection is not lost. Presumably in this case the damages would be smaller, unless the unauthorised party is, say, the secret holder's chief competitor. ] In particular, the standard Unix (tm) license specifically removes the licensee's non-disclosure obligation for information that becomes public through no fault of the licensee. Thus, I think, the whole thing hinges on whether Net2 is found to be so widely distributed that its contents are "public knowledge". If so, any trade secrets which might be contained within are lost, and the only question is whether someone owes USL some money (which, if Net2's contents are found to be both public knowledge and hold previously undisclosed USL trade secrets, they will). If Net2 is found to -not- be "public knowledge", then we again move to the question of whether it contains any protectable trade secrets, or whether all of that information was previously made public via some other path. In this case, if Net2 was found to contain some of USL's protected secrets, that protection would not be lost. Usual disc: I make this stuff up. I never went to law school. If I had, I probably wouldn't be here at this hour. John Wroclawski jtw@lcs.mit.edu Newsgroups: alt.suit.att-bsdi From: dhesi@rahul.net (Rahul Dhesi) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: Sender: news@rahul.net (Usenet News) Nntp-Posting-Host: bolero Organization: a2i network Date: Sat, 24 Apr 1993 03:30:09 GMT Lines: 23 What a wasted discussion. Consider: If USL had any trade secrets in Net/2, they are now no longer secrets. If USL had any trade secrets in Net/2, they are still trade secrets. If the moon is made of green cheese, it probably smells like USL. Once you begin with an incorrect premise ('moon made of green cheese' or 'USL had trade secrets in Net/2') does it really matter what conclusions you draw from it? There is not a shred of evidence that USL had any trade secrets in Net/2. It is a waste of human time and net bandwidth to try to analyze USL's vacuuous logic. Prove me wrong, if you wish. Find something in Net/2 that you think USL understands better than the rest of us. -- Rahul Dhesi also: dhesi@cirrus.com Newsgroups: alt.suit.att-bsdi From: henry@zoo.toronto.edu (Henry Spencer) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: Date: Sun, 25 Apr 1993 00:22:28 GMT References: Organization: U of Toronto Zoology Lines: 30 In article dhesi@rahul.net (Rahul Dhesi) writes: >What a wasted discussion... >There is not a shred of evidence that USL had any trade secrets in >Net/2. The important question -- which most of the pseudo-legal hairsplitting has indeed been ignoring -- is *not* whether there are any trade secrets involved. It is whether USL can successfully sue you by claiming that there are. These two issues aren't necessarily related. Things have *not* been settled yet, and will not be settled by any amount of online bickering. We have the immense good fortune that the judge in the USL/BSDI/UCB lawsuit seems have done his homework and really understands the technical issues involved, so there is hope that the decision will be the right one. When he rejected the request for a preliminary injunction, he basically said that USL hadn't yet made much of a case that there were trade secrets in there. Note, though, that he did not dismiss the possibility that such a case might be made. Really, guys, endless amateur argument about this is pointless. You've missed the point. The outcome is most unlikely to hinge on this kind of legalistic nitpicking. And if the outcome goes the wrong way, it won't matter diddly whether you've got an airtight argument that there aren't any trade secrets there. -- SVR4 resembles a high-speed collision | Henry Spencer @ U of Toronto Zoology between SVR3 and SunOS. - Dick Dunn | henry@zoo.toronto.edu utzoo!henry Newsgroups: alt.suit.att-bsdi From: olsen@HING.LCS.MIT.EDU (James Olsen) Subject: Re: Isn't NET2 now almost certainly free? Message-ID: <1993Apr28.215337.612@mintaka.lcs.mit.edu> Sender: news@mintaka.lcs.mit.edu Organization: MIT Laboratory for Computer Science References: Date: Wed, 28 Apr 1993 21:53:37 GMT Lines: 18 In article henry@zoo.toronto.edu (Henry Spencer) writes: >Really, guys, endless amateur argument about this is pointless. I beg to differ. If the argument here impels someone to get some competent legal advice on this topic, and act on it, then this discussion will have been worthwhile. >And if the outcome goes the wrong way, it won't matter diddly whether >you've got an airtight argument that there aren't any trade secrets >there. A competent legal opinion to that effect wouldn't give you certainty of success; there is very little certainty in this world. It could, however, show the possibility of `the outcome going the wrong way' to be remote enough that it could be discounted. -- Jim Olsen - olsen@mit.edu - "Lemon curry?" From: tal@Warren.MENTORG.COM (Tom Limoncelli) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 28 Apr 1993 22:44:47 -0400 Organization: Mentor Graphics -- IC Group, Warren, NJ, USA Lines: 40 Message-ID: <1rnfev$hql@sdl.Warren.MENTORG.COM> References: Reply-To: swamp-thing@bog.bog.bog.org NNTP-Posting-Host: sdl.warren.mentorg.com X-Newsreader: NN version 6.4.19 #2 In henry@zoo.toronto.edu (Henry Spencer) writes: >Things have *not* been settled yet, and will not be settled by any amount >of online bickering [...] Henry! I'm *greatly* offended by such a statement. If endless bickering by arm-chair lawyers, software authors, etc., etc., didn't solve any problems, would Usenet exist at all? This relates to a post you made recently in another newsgroup where you said something like, 'with the current facts at hand this discussion can not continue. All possibilities have been guessed at. We need more info before we can continue.' Such a pessemistic attitude, Henry. I'm astounded. Once all the facts are on the table and there's nothing more to be said, there are plenty of things to post. For example: 1. You can post something based on a mis-reading of an old post. 2. You can post something related, which will confuse the issue and start a whole new flurry of posts. 3. You can post a sarcastic parable with heavy-handed analogies. and lastly, 4. You can post a "lookatmelookatmelookatme" post like this one. Henry, I just think you've lost your creativity. Tom :-) -- Tom Limoncelli -- tal@warren.mentorg.com (work) -- tal@plts.org (play) Disclaimer: I do not speak for Mentor Graphics. I can't even do the accent. From: jgd@csd4.csd.uwm.edu (John G Dobnick) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 1 May 1993 03:51:03 GMT Organization: University of Wisconsin - Milwaukee Lines: 24 Message-ID: <1rss37INNsmg@uwm.edu> References: Reply-To: jgd@csd4.csd.uwm.edu NNTP-Posting-Host: 129.89.7.4 Originator: jgd@csd4.csd.uwm.edu dhesi@rahul.net (Rahul Dhesi): > If the moon is made of green cheese, it probably smells like USL. > Once you begin with an incorrect premise ('moon made of green cheese' > or 'USL had trade secrets in Net/2') does it really matter what > conclusions you draw from it? But is that *really* an incorrect premise? I recall NASA reporting, after one of the early moon landings, that the consistency of moondust was similar to (are you ready for this?) "green cheese". (In this instance, "green" == "unripened" or "new".) I always thought this one of the more "interesting" benefits of the Space Program. ;-) -- John G Dobnick ATTnet: (414) 229-5727 Computing Services Division INTERNET: jgd@uwm.edu University of Wisconsin - Milwaukee UUCP: uunet!uwm!jgd "Knowing how things work is the basis for appreciation, and is thus a source of civilized delight." -- William Safire From: rdante@sdcc13.ucsd.edu (Rick Dante) Newsgroups: alt.suit.att-bsdi Subject: Re: Isn't NET2 now almost certainly free? Date: 1 May 1993 09:04:48 GMT Organization: Newsreaders Anonymous Lines: 45 Distribution: world Message-ID: <1rtefg$bgf@network.ucsd.edu> References: <1rss37INNsmg@uwm.edu> Reply-To: rdante@sdcc13.ucsd.edu NNTP-Posting-Host: dialin1-19-1.extern.ucsd.edu In article 1rss37INNsmg@uwm.edu, jgd@csd4.csd.uwm.edu (John G Dobnick) writes: >dhesi@rahul.net (Rahul Dhesi): > >> If the moon is made of green cheese, it probably smells like USL. >> Once you begin with an incorrect premise ('moon made of green cheese' >> or 'USL had trade secrets in Net/2') does it really matter what >> conclusions you draw from it? > >But is that *really* an incorrect premise? I recall NASA reporting, >after one of the early moon landings, that the consistency of moondust >was similar to (are you ready for this?) "green cheese". (In this >instance, "green" == "unripened" or "new".) > >I always thought this one of the more "interesting" benefits of the >Space Program. ;-) > >-- >John G Dobnick ATTnet: (414) 229-5727 (irrelevant followup babble follows. Hey, it's semi-late. I know I'm breaking the rules about late posting :) but hey, it's late) Another interesting fact about moondust is that it's REALLY loaded with Helium-3 (which can't be found on Earth at all. Well maybe in the most insignificant traces, but I really think it is not to be found on Earth). It turns out that Helium-3 is far better suited as a thermonuclear fuel (for potential reactors) than deuterium/tritium mixes. I think fusion temps and pressures are lower. The 21st century might just hold the rape of the moon as well as the earth (who knows, maybe the earth will be so ugly eventually that the moon is beautiful in comparison. This is silly thinking of course, or is it? :( What this has to do with BSD386, NET2, and USL is beyond me and so I apologize for posting outside the santioned realm. --- ^*^*^*^*^*^*^*^*^*^*^*^*^* Rick Dante rdante@sdcc13.ucsd.edu ^*^*^*^*^*^*^*^*^*^*^*^*^*