Date: 08 Apr 2002 16:32:53 -0700 From: swear@blarg.net (Gary W. Swearingen) To: Terry Lambert <tlambert2@mindspring.com> Cc: "Gary W. Swearingen" <swear@blarg.net>, FreeBSD Chat <chat@FreeBSD.ORG> Subject: Re: Abuses of the BSD license? Message-ID: <y53cy5zryy.cy5@localhost.localdomain> In-Reply-To: <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> <3CB219DA.1B7DFB06@mindspring.com>
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Terry Lambert <tlambert2@mindspring.com> writes:
> "Gary W. Swearingen" wrote:
> >
> > 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.
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. 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.
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.
> 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).
> 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.
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