Date: Mon, 08 Apr 2002 21:25:52 -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: <3CB26D50.7FE4DED4@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> <3CB219DA.1B7DFB06@mindspring.com> <y53cy5zryy.cy5@localhost.localdomain>
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"Gary W. Swearingen" wrote: > > 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. > > The rights the select group are granted are only exclusive of non- > members of the group because the proprietor (the owner of the non- > exclusive rights as in your definition) has excluded non-members; it's > not because the group members have the right to exclude. They do not > have the RIGHT to exclude; they have only the DUTY to not reveal per > their contract with the proprietor. No, they only have a contractual obligation, if one was written into their contract. No "duty". Even the Church of Scintology lost on that one, with the "babble" Perl script modified to kick out stuff that sounded like their trade secret texts. > The members of the group may not > exclude the proprietor, for example. For another, they may not exclude > members of a second group the proprietor grants non-exclusive license > to. To summarize, the members of your group are not proprietors of the > trade secrets. It depends on the contract. In most non-disclosure agreements guarding trade secret disclosure, you are in fact given the responsibilities of a proprieter, in exchange for limited rights and order valuable considerations. > There is, of course, a gray area between not distributing to anybody and > distributing to the public (the thing covered by copyright law). > > (3) to distribute copies or phonorecords of the copyrighted work to > the public by sale or other transfer of ownership, or by rental, > lease, or lending; > > I suppose only courts can say when distribution to a select group > becomes publishing. It seems clear to me, however; that those source > files just discussed in a nearby thread, which claimed to be > unpublished, were, in fact, published, unless some fine print in their > system licenses have more to say (NDA?) on the matter. No, they were unpublished proprietary works. > > The > > failure to publish -- or to have the intent to publish -- removes > > most copyright protection. > > Yes; it seems that you are saying that if it embodies trade secrets, > then it can't be published and therefor can't rely on a copyright > license. That leaves software trade secrets in a tough spot which I'm > sure the courts are quite willing to let proprietors wiggle out of. > Like considering the software to be published, but the trade secrets to > be merely distributed to a select group (probably under a separate > contract or non-copyright part of the contract). No. A trade secret, once lost, by whatever means, is lost. This has been upheld in every court case of which I'm aware; no "wiggle room" exists. The closest you can get is to file a patent within one year of the disclosure (e.g. publication of source code embodying the secret); this is peculiar to the U.S.: outside the U.S., once published, information is not elegible for patent. > > 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've seen a couple restrictions on that which were in explicit > contracts. They *have* to be in contracts. If they aren't, then there is nothing which legally binds you to those terms. Normally, even if you accept shrink-wrap licenses, the worst they could do is terminate your license to use the software, due to breach. -- Terry To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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