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If you get in a trade secret dispute you have to be able to show that you took fairly stringent precautions to protect the secrecy of the trade secrets including keeping the information under some sort of lock.

Having them sitting on employee phones is a pretty dicey position to be in.

http://www.fenwick.com/docstore/Publications/IP/Trade_Secrets_Protection.pdf

Wow. Three replies to a single comment. Either you have problems organizing your thoughts, or you love your jerking knee.

I find it amazing that your definition of "true" trademark dilution is different from every other definition, where associating a trademark with something undesirable is illegal. It's irrelevant that the picture was a "stock image", as there is no such legal status. What matters is that the picture is distinctly recognizable as the NYSE, even without the existence of any other logos.

One of your examples illustrates this well. You can go into any Subway restaurant and take a picture, and it will be recognizable as a Subway, even without logos. The employee uniforms, shape of the counter, posted signs, and even the color scheme all contribute to a recognizable image. Likewise, if you see a picture of any trading floor in the United States, it's almost always the NYSE. The fact that the picture doesn't blatantly say "NYSE" is irrelevant.

It also doesn't matter that the "stock" picture is a different angle, with different people, in different colors. In fact, that image you linked to isn't even the complete registered trademark. The registered mark "consists of a representation of an actual building interior, namely, a securities exchange trading floor." Again, since almost any picture you'll see in the United States of a trading floor is the NYSE, that's pretty distinctive. It's also pretty vague, and intentionally so. Trademarks are supposed to protect a brand from being diminished by an unscrupulous company damaging or hijacking their good reputation. A vague description of the mark can protect from a much wider range of alterations than an exact detail.

The legal system does not have a set of absolute criteria to sort out "right" and "wrong" behavior, no matter how much computer folks might wish for it. Sure, the NYSE may have missed a few uses of their trademark, or chose not to send a C&D for articles they liked, but that doesn't automatically invalidate the trademark. If this case were to ever reach a court, a judge might determine that now, (ten years after registration), folks are more likely to see images of trading floors other than NYSE, and call it a dead mark. It's also not a definite problem that there was a six-month delay in sending out the C&D. A judge might consider that a bit too long to care, or he might just assume the legal department was busy. The legal system is not run by computers. It's sad, but true.

Apparently, though, the legal system is full of the same shit I am.

In this case, Google stripping that out is definitely wrong, because their process clearly creates a derived work (after all, it does take the original header as input, and applies purely mechanical transformations; I think this is clear cut).

Courts have held in the United States that technical interfaces are not copyrightable. That includes structure names, layouts, and so on. See here (pdf).

So if you take a header file and remove all the copyrightable contents (comments and so forth), what you are left with is technical interface meta data that is not protectable by copyright. That is not likely to go so far as legitimizing copies of non-trivial inline functions, but so far as ordinary manifest constants, structure layouts, and function declarations are concerned, if Baystate v. Bentley Systems (1996) means anything, Google appears to be in the clear.

Not exactly. Technical interfaces have been held to be immune from copyright protection, so in principle you can copy them all you want (assuming you copy only the essential elements, etc.)

If the logic in Baystate v. Bentley Systems (1997) is followed by the court in the Oracle case, Google will be held harmless from claims of copyright infringement deriving from the copying of interfaces and APIs. See here, here and here.

Having your work explicitly include/import/require (using that scripting language command) a file that has unambiguous copyright held by somebody else sure sounds like deriving from that file.

The end user, in memory, mayble. Unfortunately copyright only applies to original works of authorship fixed in a tangible medium of expression, and an in memory combination is neither tangible nor original.

Now you're not making sense. If you put a copyrighted work to the cloud storage (can't get much more intangible than that), it's no longer under copyright? And I'd say both the original code, and the new code using it, and their combination in memory, are original works. How could they not be?

If there are several version of the file available (like C stdio.h or something) then I think the copyright holder of the original would have to prove that derived work derives from his version of the original and not somebody else's. But in many cases, the imported file is available from only one source, and there's no ambiguity like this.

In Baystate vs. Bentley Systems (1997) a U.S. district court ruled that "technical interfaces" are not covered by copyright. There are good reasons for that. See here [pdf].

Including a specific, unique copyrighted file, with intention to include just that file, is more than using a technical interface. It's using a specific implementation of that interface. Remove the original part, and new part ceases to be what it is intended, marketed and sold as. The new part is clearly derived from the original, expanding on it. If the new part is distributed alone, but with the intention of a specific original work being combined with it (as proven by eg. installation instructions telling how to get the original work required by the new work), then I think copyright law does view that as distributing a derived work.

Having your work explicitly include/import/require (using that scripting language command) a file that has unambiguous copyright held by somebody else sure sounds like deriving from that file.

The end user, in memory, mayble. Unfortunately copyright only applies to original works of authorship fixed in a tangible medium of expression, and an in memory combination is neither tangible nor original.

If there are several version of the file available (like C stdio.h or something) then I think the copyright holder of the original would have to prove that derived work derives from his version of the original and not somebody else's. But in many cases, the imported file is available from only one source, and there's no ambiguity like this.

In Baystate vs. Bentley Systems (1997) a U.S. district court ruled that "technical interfaces" are not covered by copyright. There are good reasons for that. See here [pdf].

Outsource the CEO.

OK, let's look at a Fortune 500 CEO:

F. Duane Ackerman is CEO of BellSouth, holds a B.S. in physics and an M.S. from Rollins College, and earned an MBA from the Sloan Fellows program of the MIT Sloan School of Management. Prior to becoming CEO in 1997, he spent 3 years as COO of BellSouth (a company with $20 billion in revenue).

How many people in India have been COOs of a tech company with $20 billion in revenue?

The largest company in India by revenue is probably Reliance Industries (petrochemicals), which does about $20 billion. So there are probably one or two people in India who have experience operating companies of the size of BellSouth, but those aren't tech companies.

So let's look at the largest tech company in India, Tata Consultancy Services (TCS) with revenues of about $4 billion. The CEO of TCS, Ramadorai has a BS in Physics from Delhi University, a Bachelor of Engineering in Electronics and Telecommunications from Indian Institute of Science, Bangalore and MS Computer Science from the University of California. Ramadorai, now gets Rs 2.44 crore, or $561,000. It is unclear to me if this includes all possible non-salary compensation or not. I suspect he may hold a lot of stock.

James Q. Crowe is CEO of Level 3 Communications, which has $3.6 billion in revenue. His salary is $375,000, but his stock option profits are $3,750,000.

The CEO pay for top Indian CEOs is going up rapidly though...S Ramadorai' pay went up 100% from 2005 to 2006.

http://www.financialexpress.com/fe_full_story.php? content_id=129698

Last year, PepsiCo ($32 billion revenue) hired Indian-born and -educated Indra Nooyi for CEO. Nooyi was born in Madras and attended business school in Calcutta before completing her studies at Yale. Her salary is $964,413 but total compensation is $9,377,119.

http://www.informationweek.com/blog/main/archives/ 2006/08/pepsi_outsource.html

On the other hand, Indian CEOs may soon need to pay a 35% tax on stock options, so maybe we will see more Indian CEO talent coming to the US:

http://www.fenwick.com/docstore/Publications/Corpo rate/Execu_Comp_03-12-07.pdf

From the pages of the law firm defending Amazon's 1-Click patent: 'Led...the team enforcing Amazon.com's 1-Click patent against its then-arch rival Barnesandnoble.com, establishing the competitive importance of business method patents.'

I googled the lawyer who filed this for Cisco/linksys, scroll down for her list of clients!

"Shrink-wrap EULAs have not been shown to hold up in court."

In the U.S., at least, shrink-wrap EULA's have been tested, and are largely enforceable. See, for example, http://www.fenwick.com/docstore/Publications/Litig ation/Litigation_Alert_04-21-06.pdf

"Either way, you're wrong. We have rights guaranteed to us by law that cannot be superseded by any EULA, especially one which I haven't signed."

There are all kinds of rights "guaranteed by law" that can be "superseded" by contract. Unless a contract would be against public policy or result in an illegal act, a contract that restricts the legal freedoms of a person can be a valid contract. Let's say you write a book -- as the author, you hold the copyright. I could pay you some money for the exclusive right to publish and distribute copies of your book. That's a publishing contract, and it's done all of the time. Yes, the "right" to publish and distribute your book is granted to you by U.S. copyright law, but you are free to contract away that right, and if you then made copies of your own book after signing such a contract, you would be in breach of contract. So yeah, it's possible for a EULA, or any other contract, to "supersede" rights granted to you by the government.

You don't have a "right" to the software, they don't have to sell it to you. If they do sell it to you, they can put their own terms on the sale. If you don't like the terms, don't buy it.

TOSs and EULAs have not really been tested in court.

In ProCD Inc. v. Zeidenberg a click-through EULA was upheld as enforceable.

More analysis of the enforcement of shrinkwrap licenses in general.

This Slashdot "anger management" is funny. One software patent article per day and a couple of hundreds of exclamations about "broken system", "patent grab" etc.

Wanna get really angry, really fast? Get ready and check this lovely collection of business method patents. Some great business minds have recently invented among others:

• Secure Online Music Distribution System
• Web-Based Entry Of Financial Transaction Information And Subsequent Download Of Such Information
• Investment Fund Management Method And System (love this one - it's generic process for managing any mutual fund, straight from a university book)
• Product demand system and method ("...past product-demand data is used to estimate the product demands in current and future periods")
• Personal Online Banking With Integrated Online Statement And Checkbook User Interface
• System and Method Providing A Computer User Interface Enabling Access To Distributed Workgroup Members (a la Sourceforge)
• Automatic Updating Of Diverse Software Products On Multiple Client Computer Systems By Downloading Scanning Application To Client Computer And Generating Software List On Client Computer
• Dynamic Generation Of Contextual Links In Hypertext Documents (I've seen Geeklog "what's related" module doing this)

... and many more!

Those of you who still think that "the system is broken" should read some articles on this page. They clearly state that software and process patents are OK, and has been OK since the 60s (This link, for example). It's life, folks, and it's roaring ahead.

After venting the anger I suggest some of Slashdot readers get second legal degrees. Apparently, being a software engineer AND a lawyer kicks ass big time...

This Slashdot "anger management" is funny. One software patent article per day and a couple of hundreds of exclamations about "broken system", "patent grab" etc.

Wanna get really angry, really fast? Get ready and check this lovely collection of business method patents. Some great business minds have recently invented among others:

• Secure Online Music Distribution System
• Web-Based Entry Of Financial Transaction Information And Subsequent Download Of Such Information
• Investment Fund Management Method And System (love this one - it's generic process for managing any mutual fund, straight from a university book)
• Product demand system and method ("...past product-demand data is used to estimate the product demands in current and future periods")
• Personal Online Banking With Integrated Online Statement And Checkbook User Interface
• System and Method Providing A Computer User Interface Enabling Access To Distributed Workgroup Members (a la Sourceforge)
• Automatic Updating Of Diverse Software Products On Multiple Client Computer Systems By Downloading Scanning Application To Client Computer And Generating Software List On Client Computer
• Dynamic Generation Of Contextual Links In Hypertext Documents (I've seen Geeklog "what's related" module doing this)

... and many more!

Those of you who still think that "the system is broken" should read some articles on this page. They clearly state that software and process patents are OK, and has been OK since the 60s (This link, for example). It's life, folks, and it's roaring ahead.

After venting the anger I suggest some of Slashdot readers get second legal degrees. Apparently, being a software engineer AND a lawyer kicks ass big time...

The real, more subtle reason copyright terms are infinite is that bills keep getting passed to lengthen them.

For more information on perpetual copyright, read this writeup on Everything.

Here's how to get around perpetual copyrights and trademarks: Abstract the copyrighted expression away from the uncopyrightable idea by finding antecedents from before 1923 (or are otherwise Free). For example, derive Precious Moments from the Eloi people in chapter 4 of H. G. Wells's The Time Machine , and derive Noddy from Pinocchio renditions. This way you can avoid copyright and trademark infringement by taking a stereotype (uncopyrightable under Capcom v. Data East) and "making it yours" by changing just enough that the original expression is distinctive enough to overpower any copied expression.

This is why I no longer like Winnie-the-Pooh, as it has no Free antecedents.

CDA and COPA tried that, but they were both ruled against as unconstitutional.
--

here is some analysis of the actual ruling in the apple v. microsoft case. please review it.

please note that it indicates that "[r]emarkably, neither the district court nor the Ninth Circuit ever resolved the ultimate question of real interest in look and feel cases. "

additionally the much-ballyhooed case was a resolution of the licensing dispute between apple and microsoft. apple didn't think that microsoft should be able to use any part of the mac desktop that they felt like. microsoft and the courts disagreed.

the most important bit of this is simply that the desktop metaphor is not defendable.

whether the overall look and feel of a product is defendable or not is not addressed by this ruling. just the desktop metaphor in the particular instanciation of windows 1.0-3.0 and the original mac desktop.

to the topic at hand, apple has dumped years of work into the widgets and engines that drive osx. they are not an open-source house. period. they don't have to be. i'm sorry if you don't agree, but there it is. they built it, somebody copied it.

open source or no, if you copied a term paper or cs class problem set from another student in college, you'd be tossed out on your ass.

how is this so different?

The court cases that give this precedent are Apple Computer, Inc. v. Microsoft Corp., which involved the design of each company's operating system, and Lotus v. Borland, which involved the contents of the menus of each company's product. Essentially, both cases involved the look and feel of the plaintiff's product. It was decided that the look and feel had to be virtually identical for any legal action to take place.

Based on these cases, according to a computer law professor I had this semester, you do have the right to create a desktop environment that looks and feels like theirs, but you do not have the right to create one that looks and feels exactly like theirs. In the case of the Aqua themes, I'd say that the look and feel is virtually identical to that of Aqua in Mac OS X--I think that's the point of the themes. Thus, Apple can indeed ask themes.org to remove the offending themes expecting to see some action take place.

(For more information about Apple v. Microsoft, see Apple v. Microsoft Under a Microscope.)

However patent lawsuits based on look and feel are a separate issue. A UI can be considered a process for communicating with the user (processes are patentable) or as a design (possibly a design patent could be used).

And there is a third option. If the UI is distinctive in form instead of in function, it could get protection as "trade dress". This is related to trademark law - if something is distinctive as belonging to a company - like the colored cases of iMacs or the specially shaped Coke bottles (*) it can be protected as trade dress. This concept could be extended to UIs that look like those of the company claiming infringement.

There is an informative article about trade dress protection for UIs at http://www.fenwick.com/pub/trade_dress_for_user_in terface.htm

The article says that idea is dying, but it possibly could still be used by a litigious company to harass a competitor.

I'm not a lawyer, but it seemed patently (no pun intended) obvious that at least theoretically the concept of trade dress could be applied to a UI, even before I heard of any such attempt.

(*) The Coke bottle is a great example of trade dress. It is still so familiar even to this day that they decided to put a huge Coke bottle replica on the Las Vegas strip as part of the Coca-Cola store. Everyone recognizes the shape instantly as belonging to Coca-Cola - that is what trade dress is all about.

Reverse engineering has been around for a long time but was not tested in court (I believe) until 1992 when Sega brought a suit against Accolade. Accolade allegedly violated intellectual property by figuring out how Genesis cartridges worked and producing their own.

Accolade won the case by stating that reverse engineering was legal for decades without suit (among other statements, of course). One of the stated examples was the telnet terminal application, which relies on backwards engineering of the old DEC and Tektronix terminals of the 70's.

Because of this case, a legal precedent was set (albeit from lower than Supreme courts) which said that reverse engineering was legal and did not violate trade secrets or intellectual property.

There is also an other Atari vs. Nintendo (remember the Donkey Kong cartridge tiff in the early 80's?) case which had similar results.

For more information and a better explanation, try here

An interesting related article is http://www.fenwick.com/html/free_ride_.htm

sure it sounds reasonable. on the surface alot of unilateral agreements sound reasonable. but there's a point where this type of agreement becomes out of hand and we'll be agreeing to all kinds of weird things.

case in point: shrinkwrap software agreements/elua.remember like 10 or 12 years ago when these things used to be fairly legable? now they're totally out of control, type set in 3 point type, and have more verbage than war and peace! and it's not like you can understand them either, unless you have a legal degree... so everyone who needs photoshop, quark, office, code warrior, or any commercial software for that matter just blow right past them and quickly get to the installation screens.

so back to the topic at hand...
it wouldn't surprise me if within the next 18 months some type of recognition to the agreement will be enforced, similar to software installs, i.e. there'll be a "click here to agree" button on the web page or a type "y" in commandline to agree license compliance from nsi for whois.

what might seem draconian will be if nsi(maybe thru echelon?) keeps a database of who does whois...