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Path: sserve!manuel!munnari.oz.au!hp9000.csc.cuhk.hk!uakari.primate.wisc.edu!caen!destroyer!uunet!spooky!witr From: witr@rwwa.COM (Robert Withrow) Newsgroups: comp.unix.bsd Subject: Re: UNIGRAM's article on the USL-BSDI suit Message-ID: <1992Aug8.230537.22549@rwwa.COM> Date: 8 Aug 92 23:05:37 GMT References: <7045@skye.ed.ac.uk> <KANDALL.92Aug4161214@globalize.nsg.sgi.com><1992Aug4.162951.25999@pony.Ingres.COM> <2969@isgtec.isgtec.com> <MELLON.92Aug7144654@pepper.ncd.com> Sender: news@rwwa.COM (News Administrator) Reply-To: witr@rwwa.com Distribution: usa Organization: R.W. Withrow Associates Lines: 65 Nntp-Posting-Host: spooky In article <MELLON.92Aug7144654@pepper.ncd.com>, mellon@ncd.com (Ted Lemon) writes: | Trade secret | protection is enforced by contract law, which means that only those | who have signed the contract are constrained from releasing the trade | secret. Not entirely true, as others are also constraied from ``releasing'' the trade secret. For example, if person A breaks into USL, and steals the source code, he is ``constrained'' from ``releasing'' the trade secret. | Once the trade secret has passed into the hands of the | public, legally or no, it is no longer a trade secret,... Again, not entirely true (legally, if not practically). If the disclosure resulted from a misappropriation, it may still be considered by the court to be a trade secret. Some basics about Trade Secrets: 1) A Trade Secret is any kind of confidential information used in business that gives competitive advantage. 2) In order to be protected, it must be *secret*, and it must be shown that it was or is about to be misappropriated by unfair or illegal means. 3) The trade secret owner must show he has made efforts to preserve the secrecy of the trade secret. Some ways this can be done include restricting access to the trade secret using contracts and using security proceedures. 4) The trade secret is only protected from illegal or unfair access. Reverse engineering is considered neither illegal or unfair (lacking specific statues to the contrary). Hiring away an employee who knows the secret, and having him tell you *is* often considered unfair. In one case, hiring a plane to fly over a partially constructed plant was considered to be unfair. In short, what is unfair is whatever the court says is unfair. Some examples of the above principles: a) Information that is not secret may not be protected as a Trade Secret. For example, if it is easy to reverse-engineer the information, if the information has been published, if the owner has not made adequate efforts to protect the secrecy, there is no protection. b) If you obtain the secret without doing anything illegal or unfair there is no protection, and you have not missappropriated the secret. If you find the source code of unix lying on the street, where it was carelessly dropped by the chairman of USL, you have not misappropriated it. ;-) (much of the above was paraphrased, without permission, from ``What Every Engineer Should Know About Patents'', one of a usefull series edited by a former professor of mine...) As many have pointed out, there is a reasonable doubt that USL has made an adequate effort to protect the secrecy of the unix code involved: many books and articles have been published about the gory details of it, and much of it has been publicly distributed for a long time without any action by USL. Also, much of the code has been reverse-engineered by people who have no duty of confidentiality. The practicality of this will also shurely affect the court. Even if CSRG is found to have misappropriated whatever part of BSD unix, if any, is eventually considered to be protected, it is unlikely that anyone who uses one of the reported ``hundreds of thoushands'' of copies of the code has much to worry about, given USL's tardy efforts to protect it.