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From: karl@ddsw1.mcs.com (Karl Denninger)
Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!!
Message-ID: <1992Jul23.211455.1080@ddsw1.mcs.com>
Summary: Trade secret protection is NOT absolute
Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD
Organization: Macro Computer Solutions, Inc., Chicago, IL
References: <l6nibgINNje6@neuro.usc.edu>
Date: Thu, 23 Jul 1992 21:14:55 GMT
X-Disclaimer: Material posted in this article is the sole responsibility of
the poster and does not represent MCSNet or the system owners.
Lines: 61
In article <l6nibgINNje6@neuro.usc.edu> merlin@neuro.usc.edu (merlin) writes:
>
>However, the AT&T claim is not a copyright claim -- it is a claim that BSDI
>incorporated intellectual property belonging to AT&T into the BSDI product.
>The intellectual property may be in the form of copyright, patent, or trade
>secret protected material. While NET2 may not literally contain any direct
>copies of AT&T source code -- it is very possible it contains a translation
>or adaptation of copyrighted material -- or it may contain a patented means
>of performing some task -- or it may be based on knowledge of the original
>techniques [trade secrets] embodied in the AT&T source code. Hence, AT&T
>only has to prove that someone involved in CSRG's NET2 release or in BSDI's
>BSD/386 development had access to AT&T licensed materials at some time in
>his/her lifetime to trigger the spectre of contamination of BSDI's product.
To prove that trade-secret contamination occurred, you have to prove:
1) That a person >who had agreed to keep the information confidential<
obtained knowledge through a "protected" channel (where the
protection applied), or obtained the information improperly
(i.e. via theft). Communication through other, non-protected
means does not count.
2) That same person transmitted the information >in violation of
the agreement< (or, again, obtained the information improperly).
As this "damage" is usually in the tens of thousands of dollars (or more)
these confidentiality agreements normally must be in writing.
As this is a civil suit, the burden of proof is by preponderance of the
evidence, not reasonable doubt.
It is not illegal to learn of a trade secret by non-privileged and legal
means and then spread it far and wide. Nothing wrong with that at all.
In fact, if ONE PERSON does this then the entire trade-secret protection
falls flat on its face; its very >essence< is the secrecy of the information.
That is the reason that companies are fanatical about having people sign
confidentiality agreements before they turn over access to the goodies; the
risk of not doing so even once is that your goodies may become public
knowledge with no recourse available.
To beat this kind of rap, find a person who (1) worked at AT&T and had
legit source access, (2) didn't sign a confidentiality agreement, or whos
confidentiality agreement expired (these things usually have 2-5 year terms)
and (3) then worked for CSRG on the pertinent parts of the system >AFTER<
the expiration of the agreement. Voila: you have an unprotected information
channel and an excellent point of attack.
This is all from the information I was given by our attorneys while I ran
MCS, and from business law classes. I'm not a lawyer however; its best to
consult one on these matters...
(As an aside, this is one reason that trade-secret suits after a long period
of time has elapsed, such as this one, often fail)
Now patents are a different issue entirely; I see no patent-infringement
claims in the stuff posted so far however..
--
Karl Denninger (karl@ddsw1.MCS.COM, <well-connected>!ddsw1!karl)
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