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From: David Lamb on 24 Jun 2010 23:09
On 21/06/2010 6:45 AM, Bent C Dalager wrote:
>> Would it be a material change to protect closed source by
>> trade secret instead of copyright?
>
> The material change would be that any source code you could get your
> hands on would be yours to use as you wish, unless of course you
> obtained it through industrial espionage.

What I'm fairly sure of is that a company trying to protect something
via trade secret has to keep that something actually "secret" in a
specific sense: it has to make sure that everyone who gets to see, for
example, the source code for some software, or the method for producing
a peculiar blue shade of stained glass, signs some form of
non-disclosure agreement beforehand.

If you have in hand a copy of the source code that you obtained by some
legal means, without having signed non-disclosure, I'm reasonably sure
what you said is true. However, being given a copy by someone who
obtained it illegally probably doesn't itself count as legitimate source
of the secret. If an employee who signed nondisclosure posts the source
code on some website, and that was allowed to count as a legal way of
others obtaining the trade secret -- that sounds like a hole so big as
to make trade secret a worthless concept.

From: Arved Sandstrom on 25 Jun 2010 05:22
David Lamb wrote:
> On 21/06/2010 6:45 AM, Bent C Dalager wrote:
>>> Would it be a material change to protect closed source by
>>> trade secret instead of copyright?
>>
>> The material change would be that any source code you could get your
>> hands on would be yours to use as you wish, unless of course you
>> obtained it through industrial espionage.
>
> What I'm fairly sure of is that a company trying to protect something
> via trade secret has to keep that something actually "secret" in a
> specific sense: it has to make sure that everyone who gets to see, for
> example, the source code for some software, or the method for producing
> a peculiar blue shade of stained glass, signs some form of
> non-disclosure agreement beforehand.
>
> If you have in hand a copy of the source code that you obtained by some
> legal means, without having signed non-disclosure, I'm reasonably sure
> what you said is true. However, being given a copy by someone who
> obtained it illegally probably doesn't itself count as legitimate source
> of the secret. If an employee who signed nondisclosure posts the source
> code on some website, and that was allowed to count as a legal way of
> others obtaining the trade secret -- that sounds like a hole so big as
> to make trade secret a worthless concept.

I think that if employees sign good NDAs and non-competes that if those
employees then disclose the source code for something on a website that
this doesn't by itself void the trade secret...provided that other
measures to protect the secret are in place. That is, if you were not
shredding confidential paperwork and just left it lying around on desks,
there was no kind of policy concerning removal of paperwork or flash
drives from the premises, you had no decent escorted visitor access, and
your offices were routinely cleaned by custodians who were not vetted,
that disgruntled employee could go ahead and post all the source for
your latest in-house app - which has some trade secrets on it - and it
would possibly be legal for competitors to use that knowledge.

AHS

--
The most amazing achievement of the computer software industry is its
continuing cancellation of the steady and staggering gains made by the
computer hardware industry.
-- Henry Petroski
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