[sent to al-q; does cypherpunks-moderated@minder.net forward there?] At 06:25 PM 2/12/04 -0500, Riad S. Wahby wrote:
Among others, /. is reporting that Win2k and WinNT source code may have leaked.
The horror, the horror.
Lots has been said about OSS developers not wanting to look at this for fear that they will be "tainted." While it is true that simply the act of looking at the code is unauthorized and illegal,
If you didn't steal it, its not your problem if you read it. I wonder
if there is any truth to the claim that a developer who looked at Windows source would endanger future projects (assuming, of course, that simple copying---which is clearly illegal---doesn't happen).
How would M$ show that you had in fact read the code? And if you didn't copy it, why would a court care?
On Fri, Feb 13, 2004 at 11:45:34AM -0800, Major Variola (ret) wrote: (in reply to someone else)
Lots has been said about OSS developers not wanting to look at this for fear that they will be "tainted." While it is true that simply the act of looking at the code is unauthorized and illegal,
If you didn't steal it, its not your problem if you read it.
I disagree. I don't have time to look up the cases now but there have been a number of cases of companies being sued for (effectively) their programmers having SEEN some other code. The theory being that they are somehow contaminated with the valuable ideas embodied within and are helpless to resist implementing them. This has resulted in many companies having "chinese walls" between some programming groups who are working on a version of a competitors product that the company has the code for. This may not be "right", but it was extremely common in the early 90s. It's very expensive so I would be quite suprised if there was not strong case law on this.
I wonder
if there is any truth to the claim that a developer who looked at Windows source would endanger future projects (assuming, of course, that simple copying---which is clearly illegal---doesn't happen).
How would M$ show that you had in fact read the code?
They'd just alledge that you had, and then have "discovery" all through your files. Essentially any program could look like an "infriging work" to some judge somewhere. If I were a conspiracy theorist I'd say tha MS released the code themselves just for this reason. Eric
On Fri, 2004-02-13 at 14:45, Major Variola (ret) wrote:
[sent to al-q; does cypherpunks-moderated@minder.net forward there?]
At 06:25 PM 2/12/04 -0500, Riad S. Wahby wrote:
Among others, /. is reporting that Win2k and WinNT source code may have leaked. ... If you didn't steal it, its not your problem if you read it. ... How would M$ show that you had in fact read the code? And if you didn't copy it, why would a court care?
Eric is correct in his reply to MV's article. Joe Programmer isn't necessarily obligated not to look at leaked trade secrets, but if he implements anything remotely related to the leaked secret, he and his employers or customers are subject to being sued for using the secret. In principle they can prove that the secret didn't have any influence on the work, but in practice they're stuck having to prove a negative. Eric is also correct about the "Chinese wall" between the people who look at or figure out the secret and the implementation group. Back in the early days of the IBM PC, IBM released the source to the BIOS, figuring they could use copyright to keep anyone else from implementing a compatible BIOS. Compaq did the Chinese wall trick, with one group developing a rigorous spec from the released code, then throwing it over the wall to the implementation group. If push came to shove, the implementors could have sworn that they had never seen the IBM code.
Steve Furlong (2004-02-13 22:34Z) wrote:
Eric is correct in his reply to MV's article. Joe Programmer isn't necessarily obligated not to look at leaked trade secrets, but if he implements anything remotely related to the leaked secret, he and his employers or customers are subject to being sued for using the secret.
Case law on point? I don't think that is true at all. Trade secrets that are leaked are no longer trade secrets. I think the issue would be copyright and/or patent violation. I seem to recall something about copyright periods for trade secrets not beginning until the secret is released, a similar situation being patents issued to the NSA or other TLAs... they only start ticking when the patent is revealed. So trade secrets offer a copyright advantage. Obviously, if you can locate the persons who released a trade secret, you can probably sue them because they're probably under contract. But suing random people who happened to have looked at trade secrets and implemented similar non-patented code? Sounds shaky. -- No humanitarian endeavor can ever fill the void left by my past crimes. -Sloane
On Fri, 2004-02-13 at 19:02, Justin wrote:
Case law on point? I don't think that is true at all. Trade secrets that are leaked are no longer trade secrets.
Incorrect. Trade secrets that are deliberately released by the owner are no longer secret. Secrets that are carelessly released by the owner (eg, wide-open path between their web server and their CVS repository) are probably no longer secrets, but that's subject to finding of fact if it goes to trial. Secrets that are stolen or illegally leaked are still legally secrets. That's pretty clear, though things like developers leaving a company and using their knowledge elsewhere can be questionable. That's why most companies have non-disclosure forms for you to sign when you start work. Regarding case law cites, you can check google or findlaw as well as I. Here, for the lazy or inept, is a useful page: http://cyber.law.harvard.edu/openlaw/DVD/research/EFF_General_8.html
I think the issue would be copyright and/or patent violation.
That, too. In the case of IBM's PC-BIOS that I mentioned before, IBM relied on copyright rather than trade secret. (Obviously, given that they released the source themselves.) Note, also, that that happened in the days before rampant software patents. If the same were to happen today, they'd almost certainly get a patent on their BIOS, and Compaq wouldn't have been able to do their clean-room reimplementation.
participants (4)
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Eric Murray -
Justin -
Major Variola (ret) -
Steve Furlong