24 Feb
2017
24 Feb
'17
1:15 a.m.
On Wed, Feb 22, 2017 at 6:51 PM, Paul Ruizendaal <pnr(a)planet.nl> wrote:
I'm not a lawyer, but wasn't part of the
background that prior to 1988
in US law one could not claim both copyright and trade secret protection,
and that for something to be copyrighted it had to expressly claim to
be copyrighted material, and be registered as such?
Take this with what its worth (it came for free and I'm not a lawyer ....)
Your comment got me thinking, why would try to change and can you. So I
asked on our patent counsel this am to explain the difference. For context
in the USA we have Patent, Trade Secret, Copyright Registration and
Copyright Protection. Her reply to me was:
Copyright *protection* is automatic – as soon as the code is written it is
considered protected. Copyright *registration* is just a formality
necessary to instigate litigation. There is no time limit for registration.
Trade Secret is not compatible with copyright and patents (in a patent you
have to disclose how to make and use the invention while a trade secret
must be kept secret).
You can get a patent while having the automatic copyright protection –
remember that they protect two different things. A patent protects the
“functionality” while a copyright protects what is written, word for word.
So, you can get patent protection for what a software program does while
having copyright protection for what is written. A patent is a stronger
form of protection.
because the legal folks thought that trade secret was
a stronger
protection for software?
At the time, you could not get SW patents, and it is not clear you could
have patented UNIX as a whole anyway. But that begs the secrecy issue.
We know it had been disclosed as early as SOSP4. My engineering training
and what we teach folks I work with is, secret is secret. Do not publish
and no release, even under confidential NDA. My company, like government
folks who I have worked with, have different classification for different
documents. But "secret" means that. Which means we would not be allowed
to give a talk about the technology, nor would be we able to call it
"secret" if we had given a talk about it.
I also seem to recall that the AT&T code base
included original material
from CSRG where the copyright notice had been removed by USL.
Yep - it's hard to live in a glass house.
All in all, the USL lawyers probably felt that they would lose the case if
fought on the grounds of copyright violations alone.
Which I fear, we will never know. But to me, if they thought copyright
was not strong enough, how could anyone think it was a "secret" when by the
definition of the 1956 consent decree they had to tell people?
I wish something like Groklaw had existed during the USL-UCB case: the
legal twists and turns would have been documented a lot better.
Indeed....
There is
some material though, see:
http://www.groklaw.net/staticpages/index.php?page=legal-docs#bsdi
The amicus brief by the Regents, and the settlement make for interesting
reading.
Right, I recommend all read it.
If the position taken by the Regents is correct, all
of Unix
up to and including 32V is in the public domain now.
That's been said before and I think between this precedent of this case,
the code for the old UNIX versions, given the ancient system licenses, the
formal publication of Lions book et al, I personally feel good about the
legality of the code being available today. But everyone should ask their
own lawyer and make their own decision definitively if they believe it or
not.