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| Authored by: kuroshima on Thursday, April 19 2012 @ 10:29 AM EDT |
I think that the Java API could have protection as a compilation at best. To my
NAL eyes, that's how this reads.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, April 19 2012 @ 11:03 AM EDT |
| Judge is USL vs BSDI ruled that such class items were not
protectable. So why
now?
What is the difference between such classes (lists
basically) that
they deserve protection now?
USL vs BSDI
injunction denial ruling
After reviewing the affidavits
of Plaintiff's and
Defendants, experts, a great deal of uncertainty remains as
to what
trade secrets Net2 might contain. One fact does seem clear:
the
header files, filenames, and function names used by
Defendants are
not
trade secrets. Defendants could have printed these off
of any
of the thousands
of unrestricted copies of Plaintiff's
binary
object code. (Kashtan Aff. at
9-11.) Moreover, the
nonfunctional
elements of the code, such as comments,
cannot be trade
secrets
because these elements are minimal and confer no
competitive
advantage on Defendants. The copied elements that
contain
instructions, such as BREAD and CPIO, might perhaps be trade
secrets,
but Defendants' experts have argued persuasively
that
these instructions are
either in the public domain or
otherwise
exempt. As Defendants have repeatedly
emphasized, much of
32V
seems to be publicly available.
On the other hand,
even it Defendants are correct, it is
not clear whether 32V is publicly
available in a form
suitable to
BSDI's purposes. There is an enormous
difference between an
expert
programmer sitting down with a pile of textbooks
and
disjointed
segments of code to write out an operating system from
scratch,
and
that same programmer downloading the operating system intact
from a
public
network. In the first case, the programmer could
expend
large amounts of time
writing, testing, and debugging the
newly-created system, with an uncertain
prospect of
immediate
success. But in the second case, immediate success would
be
virtually assured. Thus, even if all of the pieces of the
32V code
had been
thoroughly revealed in publicly available
literature, the
overall organization
of the code might remain a trade secret
unless
it too had been
disclosed.
On the present record, however, it is impossible to
determine
whether the overall organization of Net2 has been
disclosed. The record itself
contains little information
directly
pertinent to this issue. Moreover, the
parties' submissions
hint
that some of 32V's organization may already be
publicly
available.
Berkeley has apparently released nonproprietary programs
such as
Net1 since 1987 (Regents Am. Opp'g Br. at 13), programs
that
presumably have divulged at least some information about
32V's
organization.
A further consideration is that 32V's
overall
organization may not even be protectable in the first place.
Berkeley's
license to use 32V protects 32V derivatives only
to the
extent that they
contain certain proprietary information.
If
Berkeley excises the proprietary
information (as it
attempted to do
with Net2), Berkeley is free to distribute
derivatives
without
restriction. Berkeley has utilized this freedom in the
past
to
distribute a number of non-proprietary systems and portions
of
systems, all apparently without objections from AT&T.
These
distributions, to some degree, must have disclosed the
overall
organization of 32V. Thus, Berkeley's activities under the
licensing
agreement, and AT&T's acceptance of those
activities, are
evidence that
Berkeley and AT&T interpreted the agreement to
allow
the disclosure of at
least some of 32V's organization.
In summary, I find that I am unable to
ascertain whether
any aspect of Net2 or BSD/386, be it an individual line of
code or
the overall system organization, deserves protection as
Plaintiff's
trade secret. Since Plaintiff has failed to provide
enough
evidence to establish a "reasonable probability" that Net2
or
BSD/386
contain trade secrets, I find that Plaintiff has
failed to
demonstrate a
likelihood of success on the merits of its
claim for
misappropriation of trade
secrets. No preliminary
injunction will
issue.
We are back to
basics.
The judge, not being a programmer, seems to be confused.
Maybe
should do a shout out (or call a friend)... Does
anyone have the USL vs BSDI
judge's phone number to give to
this judge?
[ Reply to This | Parent | # ]
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