Date: Mon, 08 Apr 2002 00:47:20 -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: <3CB14B08.91041978@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>
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"Gary W. Swearingen" wrote: > Terry Lambert <tlambert2@mindspring.com> writes: > > And trade secrets are not necessarily proprietary; they can > > be distributed to a select group. The exclusive rights are > > retained by the proprieter, but the secrets themselves are > > distributed. > > Trade secrets are proprietary by law. Your example contradicts your > claim when you say "the exclusive rights are retained by the > proprieter". How can you say that for an example of something that's > not proprietary? Been reading at fsf.org too long? :-) Distribution is > irrelevant, like it is with copyright. (You may distribute your copy of > a book to many people as long as you don't distribute it to the public.) > > The funny thing that you observed is that not even trade secrets are > necessarily secret, in some sense. (Of course, when they become > available to the general public (or become widely known?), they loose > their protected trade secret status, IIRC.) Yes. This is why I stated "distributed to a select group" in my statement. The term "select group" has special legal meaning. The thing about trade secrets is that there has been this ongoing attempt to equate them with some sort of legal protection for the information. In fact, trade secrets are *not* legally protected, per se; the only legal protection they have is the ability to claim damages against the discloser. This is one of the reasons the USL lawsuit was irrelelevent, and why the Judge in the case explicitly recommended that USL pursue some means fo settlement, because they would lose on many of their arguments (this preliminary opinion was one of the last public documents published in the case). Once a trade secret is disclosed -- *however it is disclosed* -- then it is *lost forever*. The only thing you can sue over is breach of contract by the discloser, and then you can collect damages against them relative to their responsibility for the disclosure. If someone *independently* arrives at the same solution to a problem (e.g. making red art glass, or a particular approach to a computational problem), then it's *not* disclosure of a trade secret at all. "Proprietary", in this case, means: something that is used, produced, or marketed under exclusive legal right of the inventor or maker; specifically : a drug (as a patent medicine) that is protected by secrecy, patent, or copyright against free competition as to name, product, composition, or process of manufacture 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). Hence the proliferation of the NDAs in the software industry, and the common publication of API and "developer kits", to gain protction through copyright and other stronger means ...e.g. you can statuatory damages and attorney's fees if your copyright on materials is registered in the U.S. is violated: http://www.loc.gov/copyright/faq.html#q14 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. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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