Date: Mon, 08 Apr 2002 15:29:46 -0700 From: Terry Lambert <tlambert2@mindspring.com> To: "Gary W. Swearingen" <swear@blarg.net> Cc: FreeBSD Chat <chat@FreeBSD.ORG> Subject: Re: Abuses of the BSD license? Message-ID: <3CB219DA.1B7DFB06@mindspring.com> References: <200204051922.06556@silver.dt1.binity.net> <3CAE7037.801FB15F@optusnet.com.au> <3CAEA028.186ED53E@optusnet.com.au> <3CAED90B.F4B7905@mindspring.com> <4.3.2.7.2.20020406124622.019bfdc8@threespace.com> <3CAF7FB9.3259C392@mindspring.com> <qmu1qmzwkb.1qm@localhost.localdomain> <3CB1196B.403F465D@mindspring.com> <26g026zq9y.026@localhost.localdomain> <3CB14B08.91041978@mindspring.com> <cubscuywc5.scu@localhost.localdomain>
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"Gary W. Swearingen" wrote: > > When code embodying trade secrets is licensed to a third party, > > trade secrets are different than patents or copyrights, in that > > the licensing of the code makes the licensee a propritor as well > > (unless the license was written by a total idiot). > > Not according to your definition above. Those licensees are granted > non-exclusive rights, and so don't meet your definition's requirement > regarding "exclusive legal right" while only the proprietor has the > exclusive rights required by your definition. (It is possible to > license away your exclusive rights (so you may be excluded), but that's > uncommon and not what you were referring to (see your "as well").) They are part of a select group. The rights they are granted are exclusive of non-members of the group. For it to remain a trade secret, its distribution must be controlled. Exclusive rights include distribution rights, but are not limited to them. In the case of the USL trade secrets that were at one time in the UNIX sources, there was no requirement of non-disclosure in the original Western Electric license under which the code was obtained by the University of California at Berkeley. The treatment of trade secrets came with later licenses. However, the later licenses are not applicable to code derived from code obtained under an earlier license. Practically everyone who has ever studied in the UNIX community has heard of "The Lions Book"; the license on the code in that case did not preclude redistribution, and it was only the new license that made it a requirement. I know few people who do not have a tattered photocopy of a photocopy of the book, from an original from the University of New South Wales bookstore. > > If you come down to it, actually, the attempts at extension of trade > > secret law to attempt to include stautory damages is actually a > > bigger threat than software patents. > > So if you violate my copyright license condition of use that requires > you keep my secrets, then I may sue you for copyright infrigement which > gives a me better deal in court. And maybe I'll also sue you for the > trade secret disclosure too. Interesting. But it makes more sense than > being allowed to sue you for publishing benchmark results. As a trade secret, the information is unpublished. Copyright applies to publication only, since article 1 section 12 of the U.S. Constitution -- the basis for Copyright law in the U.S. -- establishes the right of the government to create legislation such as the copyright and patent law in U.S.C. 17 only on the basis of "promoting the progress in the arts and sciences". The failure to publish -- or to have the intent to publish -- removes most copyright protection. Also, you do not have to copy the source code to reveal a trade secret. Specifically, source code may embody a trade secret, but source code on its own can not *be* a trade secret, merely it can be proprietary. The whole "sueing for publication of benchmark results" is based on breach of contract, for an implied contract. So are most software and music/video piracy causes of action. I think that the reason that the DMCA is going to lose at the U.S. Supreme Court level over the Constitutionality challenge is directly related to article 1, section 12, and to contract law, and not to the main claim of the current appeal by the Russian company of "fair use". -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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