From: karl@ddsw1.mcs.com (Karl Denninger)
Newsgroups: comp.unix.bsd
Subject: Re: AT&T vs. BSDI --> 4.3BSD-NET2 distribution requires AT&T license!!!
Summary: Trade secret protection is NOT absolute
Keywords: AT&T 'Death Star' rises over BSDI's horizon [Tel. 1-800-800-4BSD
Date: 23 Jul 92 21:14:55 GMT
Article-I.D.: ddsw1.1992Jul23.211455.1080
Organization: Macro Computer Solutions, Inc., Chicago, IL
X-Disclaimer:  Material posted in this article is the sole responsibility of
                the poster and does not represent MCSNet or the system owners.

In article <l6nibgINNje6@neuro.usc.edu> merlin@neuro.usc.edu (merlin) writes:
>
>However, the AT&T claim is not a copyright claim -- it is a claim that BSDI
>incorporated intellectual property belonging to AT&T into the BSDI product.
>The intellectual property may be in the form of copyright, patent, or trade 
>secret protected material.  While NET2 may not literally contain any direct
>copies of AT&T source code -- it is very possible it contains a translation
>or adaptation of copyrighted material -- or it may contain a patented means
>of performing some task -- or it may be based on knowledge of the original
>techniques [trade secrets] embodied in the AT&T source code.  Hence, AT&T
>only has to prove that someone involved in CSRG's NET2 release or in BSDI's 
>BSD/386 development had access to AT&T licensed materials at some time in
>his/her lifetime to trigger the spectre of contamination of BSDI's product.

To prove that trade-secret contamination occurred, you have to prove:

1)	That a person >who had agreed to keep the information confidential<
	obtained knowledge through a "protected" channel (where the
	protection applied), or obtained the information improperly 
	(i.e. via theft).  Communication through other, non-protected 
	means does not count.

2)	That same person transmitted the information >in violation of 
	the agreement< (or, again, obtained the information improperly).

As this "damage" is usually in the tens of thousands of dollars (or more)
these confidentiality agreements normally must be in writing.

As this is a civil suit, the burden of proof is by preponderance of the
evidence, not reasonable doubt.

It is not illegal to learn of a trade secret by non-privileged and legal
means and then spread it far and wide.  Nothing wrong with that at all.  
In fact, if ONE PERSON does this then the entire trade-secret protection 
falls flat on its face; its very >essence< is the secrecy of the information.
That is the reason that companies are fanatical about having people sign 
confidentiality agreements before they turn over access to the goodies; the
risk of not doing so even once is that your goodies may become public
knowledge with no recourse available.

To beat this kind of rap, find a person who (1) worked at AT&T and had
legit source access, (2) didn't sign a confidentiality agreement, or whos
confidentiality agreement expired (these things usually have 2-5 year terms)
and (3) then worked for CSRG on the pertinent parts of the system >AFTER< 
the expiration of the agreement.  Voila: you have an unprotected information 
channel and an excellent point of attack.

This is all from the information I was given by our attorneys while I ran
MCS, and from business law classes.  I'm not a lawyer however; its best to
consult one on these matters...

(As an aside, this is one reason that trade-secret suits after a long period
of time has elapsed, such as this one, often fail)

Now patents are a different issue entirely; I see no patent-infringement
claims in the stuff posted so far however..

--
Karl Denninger (karl@ddsw1.MCS.COM, <well-connected>!ddsw1!karl)
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