If this isn't exactly what the first sale doctrine is supposed to protect, what is?
The defendents (the folks selling the discontinued patterns on the web) never purchased the patterns. They acquired them through other (legal) means.
Which isn't to say I don't agree with you. If the publisher decided to throw away all of their copies of "Conquest of Chaos" by L. Ron Hubbard, and I got them, I can do anything I want to with them. I can give them away to my enemies (I wouldn't inflict something this bad on my friends), I can use them as toilet paper. I can sell them. I can auction *cough* e-bay *cough* them off to the higest bidder, you name it.
I disagree. To use your book example, who would buy (at full price, or even half off) a new book without the cover? Nobody would, that's why the practice works to a large part.
If the pattern industry were going to do something similar, they'd require that the patterns be ripped in half.
Regardless, if I have the physical material, I can sell it for whatever I can get. That's why it's called "owning" something.
Also, once you stick it in the dumpster, it's fair game. You might be able to do the "trespassing" thing if you caught me dumpster diving, but that's not what this lawsuit is about.
OBSCOComment: I wonder what SCO has done with their "trade secret" source code printouts and tapes over the years...
Only thing they might have a leg to stand on is simply theft of property, but apparently they don't think they can support that.
If you've thrown it into the trash, I don't think you can later claim the garbage men came by and stole it.
For all the "NDAers".
on
SCO SCO SCO!
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· Score: 2, Interesting
IANAL, but let's talk trade secret law for a bit.
If you have something you're going to claim to be a trade secret, you have to exercise "reasonable precaution" and "due diligence" to prevent the secret from being revealed to the public, or you lose your trade secret status.
How do the courts decide if something is a trade secret? Generally, you sue somebody for trade secret infingement, or somebody sues you claiming that you don't really have a trade secret.
One of the big things the courts look for is consistancy in keeping your trade secret a secret. If you don't require everybody (and I mean everybody) to sign NDA's, the court can rule that you have allowed your secret to pass into the public knowledge, and is no longer a trade secret.
If, however, I sign an NDA with you to not disclose your trade secret information, and then I give it to a competitor, the courts can rule that I violated the NDA, so I owe you money for damaages, the company I gave the secret to may be liable for damages (that would probably need another lawsuit), and that the trade secret is still a secret even though there are now "umpteen" people who know it.
If, however, I give you access to my source code without requiring you to sign an NDA, even though the material is in millions of archives all over the planet, I'm basically saying "it's not a trade secret anymore", and the courts will (hopefully, I don't know about US courts anymore) rule that you no longer have a trade secret due to your actions.
Courts have, however, ruled that once a trade secret has reached enough people, regardless of the method, that trade secret status is lost. So, if I found out the formula for Coca-Cola (either by signing an NDA, breaking and entering, torturing one of the people who knows it, whatever), and posted it all over the internet, the courts could rule that even Coca-Cola maintained due diligence in attempting to retain their trade secret, it has lost that status.
Whether or not people should be signing NDA's is something they'll have to take up with somebody who can provide competent legal advice (in other words, not me), and will depend on lots of factors.
Re:Killing Linux
on
SCO SCO SCO!
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· Score: 4, Informative
To quote Dvorak:
And what happens if there is an out-of-court settlement and IBM does some under-the-table deal and suddenly emerges as the top Linux vendor with the only legal license to use certain aspects of the kernel?
Then IBM (or SCO, or somebody) will have to define what those "certain aspects of the kernel" are, and they will be replaced by code written by people who have never worked for IBM or SCO. If IBM wants to maintain a "SCO-Fork" of the kernel, more power to them.
Ask me a difficult one next time.
Re:So let me get this straight...
on
SCO SCO SCO!
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· Score: 1
To quote the poster:
Is it possible for them to get a determination from a judge without disclosing their "trade secret" to the public? If so, they could milk it indefinitely.
Yes. It's called "under seal", and it basically means that the court and the lawyers, special agents, and other people directly involved get to see the evidence, but they can't discuss it.
The cult of scientology has used it in the past in a foolish attempt to keep their "trade secret" that humans are actually space aliens who were chained to volcanos and blown up with hydrogen bombs 75,000,000 years ago going.
No. SCO claims they own something, Novell claims they don't. SCO sues Novell, forcing them to prove that SCO doesn't own the stuff. If Novell can't prove it, then SCO can continue their claim that they own something.
According to the article, the new group will be called outa'sync (um, no, wrong article. Hang on. Ok). The new group will called the (drum roll, please):
Security Engineering Strategy Team
Anything group that has the word "strategy" in it will spend their time writing memos about how this piece of already written code could be better.
These memos will then be ignored by everybody so they can meet their deadlines.
Correct, ideas cannot be copyrighted. Copyright covers the expression of ideas. For example, "Romeo and Juliet" and "West Side Story" have the same idea (boy meets girl, family refuses to allow them to see each other, etc), but they are expressed differently.
However, just because you can express something doesn't mean you can copyright it. The Yellow Pages are an example. Also, there are some things the (United States) law says can't be copyrighted, such as the things produced by the (United States) government.
Patents and trade secrets protect the ideas themselves.
Which is not to say that the USPTO isn't currently being staffed with a bunch of machines that just stamp "approved" on every piece of paper that they can find, but...
Trade secrets have their own headaches. The hassle of the non-disclosure agreements, the "must keep locked in safe at all times", and other issues can be a big pain.
Which doesn't stop some companies from foolishing claiming that they've copyrighted their patented trade secret for something, because if you start that way, the courts can rule against you, but if you don't claim it at the beginning, you (usually) can't suddenly claim it later.
If they have then and ONLY then is that PROOF POSITIVE that SCO is correct.
Um, no. Then and only then is there proof that it might be possible. In order for it to be obvious that it might have been a cut and paste job, you'd have to prove that they had access to the SCO source at the time the code was committed to the Linux base.
If, for example, I worked for SCO from 1996 to 1998, and in 2000 I submitted a patch to the kernel code you can't just immediately demand that I go to the electric chair.
Now, IANAL, but from what little I understand, you'd need to prove:
Copyright Infringement
In order to prove copyright infringement, you have to prove that a "substantial" portion was lifted out of your work. 10 to 15 lines in a function of 1,500 lines probably falls under "fair use". In some circumstances (e.g. Weird Al Parodies), you can reproduce the entire thing, so long as you make a deritative work that is protected under the First Amendment.
I can only hope they're not going to try and claims that they own the copyright on things like "i=0;" and other such idiocies.
Patent Infringement
Patent infringement occurs when I use your patent filing (or something containing the information in your patent filing) to create a duplicate of your patent. There is a concept known as "independent invention" that says that even if I develop an exact duplicate of your patent, it's not infringement if I didn't know about your patent.
I'm sure that somebody has a patent on (say), the bubble sort. Or the quick sort. If you haven't read their patent description, but instead build it on your own, you are not infringing. You could probably be told to take your code off the market, but you're not infringing.
The purpose of the patent is to provide you with protection on your process while exposing that process to others, who can then change it around to make it better, stronger, faster, do different things, or whatever.
For example, say you patent your sort routine mentioned above. I see your patent, realize that it could be done in half the steps you list, code it up, and patent that. I am still not infringing on your patent, because my product is substantially different then yours.
Trade secret violations
Despite that the cult of scientology might claim, trade secrets are not patentable.
In order to prove trade secret violations, you have to prove a long list of things, including non disclosure agreements, secure chain of transmission for the code at all times, that everybody who had access understood that they were a trade secret, and lots of other things.
Attempting to prove that something is a trade secret, especially soemthing that has a large scope, can easily lead the courts to rule that it has passed into the public knowledge, so this is a two-edged sword. This factor is one of the reasons why scientology dropped their trade secret claims against Dennis Erlich; they didn't want a judgement against them on that count.
Finally...
I really think that attempting to prove something like this, especially for "10 to 15 lines" is going to be impossible. For any given problem "x", which will be 10-15 lines of code, and if you took 1,000 programmers and asked them to solve it, how many do you think would code it identically, or almost identically?
Ten to fifteen lines in a larger procedure has the same problem.
My answer is 100-200.
Plus, there's the BSD code issue. If both code bases have used BSD code, SCO should be made to prove that the code they're claiming is infringing was not taken from BSD code.
First, make sure you have reverse DNS lookup turned on, so that if you're claiming to be from domain foo.com, but your IP address says you're at bar.com, it gets dropped.
For everything else, set up a blacklist. Any addresses and domains in the blacklist do not get dropped, they get returned to the originator with a "no such user at this address" error message.
You'd probably need to build in some logic so that if I'm forging things from "invalid.user@foo.com" you don't start wasting bandwidth getting more bounce messages...
For the rest of it, you'd tests things in the following order:
Reverse DNS lookup. If this fails, drop it.
User whitelist, these get passed through.
User blacklist, these get "no such user".
System whitelist, these get passed through.
System bkacklist, these get "no such user".
RBL, ORBS, etc.
Send it to user.
Personally, I prefer the concept of using spammers as experimental subjects, or perhaps seeing how long they would last underwater without any scuba gear, or something.
If you read the article, you'll see that section six says:
Employment Restriction: Employee shall not accept employment directly or indirectly with, at, for or by Client or Client's customer for a period of 90 days following the completion of Employee's assignment to Client or Clients' customer without the written consent of the Company."
What this is supposed to do is allow Volt to regain their investment in dealing with your resume, interviews, payroll, etc. by preventing companies from putting out week-long or two-week long contracts to see if they like you.
It's also designed to prevent other temp agencies from using Volt's temps as a pool of resources for future contracts.
The fact that somebody from MS called some company and said "I want him" pretty much means that Volt should get stuffed (IANAL, YMMV, YRANA, etc.)
This whole thing might have been avoided if Doug had called the MS guy back up and said, "call Volt". Then again, maybe not.
The fact that the Volt people are willing to engage in harassment and criminally coercive actions just means that I'll never be working for them again.
Where do you get the idea that by suing IBM, Caldera/SCO/Yaddah-yaddah can "get control over" anything?
IANAL, but if IBM did engage in trade secret violations by putting SCO IP into the Linux kernel, they get to pay a fine, and the offending code has to be removed.
If IBM did lose, they might decide to sign the rights for AIX over to SCO as part of that fine, but that wouldn't be an automatic thing.
As far as I know, SCO hasn't sued Linus (the owner of the Linux trademark), nor the Free Software Foundation (the copyright owners to the code in the kernel, from what I understand), so even if IBM were to lose, the Linux kernel (in terms of "who owns it") would be unaffected.
I think science, as Contact points out, must also acknowledge that not everything is knowable.
The scientific method states that all theories are subject to revision given new data. Whether "everything is knowable" about anything is not something that scientists want to start arguing about.
Before anybody starts in with their favorite "why don't the revise the theory of foo to include bar" talk, remember that if you can't collect your data using the scientific method, people using the scientific method aren't going to listen to you.
(Yes, I know that the current situation regarding politics, money, contributions, tenure, etc. is keeping a lot of really interesting studies from being performed, but that's another story for another thread.)
This is what is what's is so disturbing about "the origin of the species through evolution" and "creationism" debate where it seems each considers the other "blasphemous". They aren't really so mutually exclusive.
Scientists don't claim it's mutually exclusive. Only the so-called "Christian Scientists" pushing their religious agenda do so.
I hope not. If I want it to be recursive, I'll code it that way. If I want it to be iterative, I'll code it that way.
This is not to say that compilers shouldn't optimize things, such as dead code, register optimization, and stuff like that, but I know what I want, not the compiler writer(s).
Then just rewrite it in pretty fashion, changing variable names and functions to your needs and include in your own software. It's "the best of the worst", last resort at finding a solution to a small problem.
And exposes you to possible trade secret and copyright infringement claims.
Really, if you know somebody else can take input "a", do "something magical" with it, and get output "b", are you really willing to admit that they are smarter then you?
So, Dubya signs a tax-cut which includes lots of short-term and long-term capitals gains cuts, and Ballmer suddenly decides to sell a lot of stock.
Gee, I wonder why.
For those speculating on other things, I think Ballmer, et. al. *KNOW* that the profitability of MS is eventually doomed, but can't think of a way of getting out big time without crashing the company. So, they sell off here, they sell off there, and do the standard "screw the employee, shareholders, and everybody else not part of the good-buddy club" routine.
The exploit uses a buffer overflow to insert new code after the game has been verified as "being good". If you want to play something else, all you'd need to do is remove 007 game, insert new game, press "reset".
Slashdot Mirror
To quote the original poster:
The defendents (the folks selling the discontinued patterns on the web) never purchased the patterns. They acquired them through other (legal) means.
Which isn't to say I don't agree with you. If the publisher decided to throw away all of their copies of "Conquest of Chaos" by L. Ron Hubbard, and I got them, I can do anything I want to with them. I can give them away to my enemies (I wouldn't inflict something this bad on my friends), I can use them as toilet paper. I can sell them. I can auction *cough* e-bay *cough* them off to the higest bidder, you name it.
I disagree. To use your book example, who would buy (at full price, or even half off) a new book without the cover? Nobody would, that's why the practice works to a large part.
If the pattern industry were going to do something similar, they'd require that the patterns be ripped in half.
Regardless, if I have the physical material, I can sell it for whatever I can get. That's why it's called "owning" something.
Also, once you stick it in the dumpster, it's fair game. You might be able to do the "trespassing" thing if you caught me dumpster diving, but that's not what this lawsuit is about.
OBSCOComment: I wonder what SCO has done with their "trade secret" source code printouts and tapes over the years...
If you've thrown it into the trash, I don't think you can later claim the garbage men came by and stole it.
IANAL, but let's talk trade secret law for a bit.
If you have something you're going to claim to be a trade secret, you have to exercise "reasonable precaution" and "due diligence" to prevent the secret from being revealed to the public, or you lose your trade secret status.
How do the courts decide if something is a trade secret? Generally, you sue somebody for trade secret infingement, or somebody sues you claiming that you don't really have a trade secret.
One of the big things the courts look for is consistancy in keeping your trade secret a secret. If you don't require everybody (and I mean everybody) to sign NDA's, the court can rule that you have allowed your secret to pass into the public knowledge, and is no longer a trade secret.
If, however, I sign an NDA with you to not disclose your trade secret information, and then I give it to a competitor, the courts can rule that I violated the NDA, so I owe you money for damaages, the company I gave the secret to may be liable for damages (that would probably need another lawsuit), and that the trade secret is still a secret even though there are now "umpteen" people who know it.
If, however, I give you access to my source code without requiring you to sign an NDA, even though the material is in millions of archives all over the planet, I'm basically saying "it's not a trade secret anymore", and the courts will (hopefully, I don't know about US courts anymore) rule that you no longer have a trade secret due to your actions.
Courts have, however, ruled that once a trade secret has reached enough people, regardless of the method, that trade secret status is lost. So, if I found out the formula for Coca-Cola (either by signing an NDA, breaking and entering, torturing one of the people who knows it, whatever), and posted it all over the internet, the courts could rule that even Coca-Cola maintained due diligence in attempting to retain their trade secret, it has lost that status.
Whether or not people should be signing NDA's is something they'll have to take up with somebody who can provide competent legal advice (in other words, not me), and will depend on lots of factors.
To quote Dvorak:
Then IBM (or SCO, or somebody) will have to define what those "certain aspects of the kernel" are, and they will be replaced by code written by people who have never worked for IBM or SCO. If IBM wants to maintain a "SCO-Fork" of the kernel, more power to them.
Ask me a difficult one next time.
To quote the poster:
Yes. It's called "under seal", and it basically means that the court and the lawyers, special agents, and other people directly involved get to see the evidence, but they can't discuss it.
The cult of scientology has used it in the past in a foolish attempt to keep their "trade secret" that humans are actually space aliens who were chained to volcanos and blown up with hydrogen bombs 75,000,000 years ago going.
No. SCO claims they own something, Novell claims they don't. SCO sues Novell, forcing them to prove that SCO doesn't own the stuff. If Novell can't prove it, then SCO can continue their claim that they own something.
How to be a good businessman: Shut up.
Or, "What I don't say can't be used against me".
The advertisement I got when I come into the comments page was for the Intel C++ compilter.
If DeCSS is a burglery tool, Intel, Microsoft, and other assembler/compiler makers should be charged with "aiding and abetting".
According to the article, the new group will be called outa'sync (um, no, wrong article. Hang on. Ok). The new group will called the (drum roll, please):
Anything group that has the word "strategy" in it will spend their time writing memos about how this piece of already written code could be better.
These memos will then be ignored by everybody so they can meet their deadlines.
To quote the poster:
Correct, ideas cannot be copyrighted. Copyright covers the expression of ideas. For example, "Romeo and Juliet" and "West Side Story" have the same idea (boy meets girl, family refuses to allow them to see each other, etc), but they are expressed differently.
However, just because you can express something doesn't mean you can copyright it. The Yellow Pages are an example. Also, there are some things the (United States) law says can't be copyrighted, such as the things produced by the (United States) government.
Patents and trade secrets protect the ideas themselves.
Which is not to say that the USPTO isn't currently being staffed with a bunch of machines that just stamp "approved" on every piece of paper that they can find, but...
Trade secrets have their own headaches. The hassle of the non-disclosure agreements, the "must keep locked in safe at all times", and other issues can be a big pain.
Which doesn't stop some companies from foolishing claiming that they've copyrighted their patented trade secret for something, because if you start that way, the courts can rule against you, but if you don't claim it at the beginning, you (usually) can't suddenly claim it later.
To quote the poster:
Um, no. Then and only then is there proof that it might be possible. In order for it to be obvious that it might have been a cut and paste job, you'd have to prove that they had access to the SCO source at the time the code was committed to the Linux base.
If, for example, I worked for SCO from 1996 to 1998, and in 2000 I submitted a patch to the kernel code you can't just immediately demand that I go to the electric chair.
Now, IANAL, but from what little I understand, you'd need to prove:
Copyright Infringement
In order to prove copyright infringement, you have to prove that a "substantial" portion was lifted out of your work. 10 to 15 lines in a function of 1,500 lines probably falls under "fair use". In some circumstances (e.g. Weird Al Parodies), you can reproduce the entire thing, so long as you make a deritative work that is protected under the First Amendment.
I can only hope they're not going to try and claims that they own the copyright on things like "i=0;" and other such idiocies.
Patent Infringement
Patent infringement occurs when I use your patent filing (or something containing the information in your patent filing) to create a duplicate of your patent. There is a concept known as "independent invention" that says that even if I develop an exact duplicate of your patent, it's not infringement if I didn't know about your patent.
I'm sure that somebody has a patent on (say), the bubble sort. Or the quick sort. If you haven't read their patent description, but instead build it on your own, you are not infringing. You could probably be told to take your code off the market, but you're not infringing.
The purpose of the patent is to provide you with protection on your process while exposing that process to others, who can then change it around to make it better, stronger, faster, do different things, or whatever.
For example, say you patent your sort routine mentioned above. I see your patent, realize that it could be done in half the steps you list, code it up, and patent that. I am still not infringing on your patent, because my product is substantially different then yours.
Trade secret violations
Despite that the cult of scientology might claim, trade secrets are not patentable.
In order to prove trade secret violations, you have to prove a long list of things, including non disclosure agreements, secure chain of transmission for the code at all times, that everybody who had access understood that they were a trade secret, and lots of other things.
Attempting to prove that something is a trade secret, especially soemthing that has a large scope, can easily lead the courts to rule that it has passed into the public knowledge, so this is a two-edged sword. This factor is one of the reasons why scientology dropped their trade secret claims against Dennis Erlich; they didn't want a judgement against them on that count.
Finally...
I really think that attempting to prove something like this, especially for "10 to 15 lines" is going to be impossible. For any given problem "x", which will be 10-15 lines of code, and if you took 1,000 programmers and asked them to solve it, how many do you think would code it identically, or almost identically?
Ten to fifteen lines in a larger procedure has the same problem.
My answer is 100-200.
Plus, there's the BSD code issue. If both code bases have used BSD code, SCO should be made to prove that the code they're claiming is infringing was not taken from BSD code.
To quote the previous poster:
This is obviously some definition of the word "recursion" that I wasn't aware of before. Please elaborate.
First, make sure you have reverse DNS lookup turned on, so that if you're claiming to be from domain foo.com, but your IP address says you're at bar.com, it gets dropped.
For everything else, set up a blacklist. Any addresses and domains in the blacklist do not get dropped, they get returned to the originator with a "no such user at this address" error message.
You'd probably need to build in some logic so that if I'm forging things from "invalid.user@foo.com" you don't start wasting bandwidth getting more bounce messages...
For the rest of it, you'd tests things in the following order:
Personally, I prefer the concept of using spammers as experimental subjects, or perhaps seeing how long they would last underwater without any scuba gear, or something.
If you read the article, you'll see that section six says:
What this is supposed to do is allow Volt to regain their investment in dealing with your resume, interviews, payroll, etc. by preventing companies from putting out week-long or two-week long contracts to see if they like you.
It's also designed to prevent other temp agencies from using Volt's temps as a pool of resources for future contracts.
The fact that somebody from MS called some company and said "I want him" pretty much means that Volt should get stuffed (IANAL, YMMV, YRANA, etc.)
This whole thing might have been avoided if Doug had called the MS guy back up and said, "call Volt". Then again, maybe not.
The fact that the Volt people are willing to engage in harassment and criminally coercive actions just means that I'll never be working for them again.
Where do you get the idea that by suing IBM, Caldera/SCO/Yaddah-yaddah can "get control over" anything?
IANAL, but if IBM did engage in trade secret violations by putting SCO IP into the Linux kernel, they get to pay a fine, and the offending code has to be removed.
If IBM did lose, they might decide to sign the rights for AIX over to SCO as part of that fine, but that wouldn't be an automatic thing.
As far as I know, SCO hasn't sued Linus (the owner of the Linux trademark), nor the Free Software Foundation (the copyright owners to the code in the kernel, from what I understand), so even if IBM were to lose, the Linux kernel (in terms of "who owns it") would be unaffected.
To quote the original poster:
The scientific method states that all theories are subject to revision given new data. Whether "everything is knowable" about anything is not something that scientists want to start arguing about.
Before anybody starts in with their favorite "why don't the revise the theory of foo to include bar" talk, remember that if you can't collect your data using the scientific method, people using the scientific method aren't going to listen to you.
(Yes, I know that the current situation regarding politics, money, contributions, tenure, etc. is keeping a lot of really interesting studies from being performed, but that's another story for another thread.)
Scientists don't claim it's mutually exclusive. Only the so-called "Christian Scientists" pushing their religious agenda do so.
I hope not. If I want it to be recursive, I'll code it that way. If I want it to be iterative, I'll code it that way.
This is not to say that compilers shouldn't optimize things, such as dead code, register optimization, and stuff like that, but I know what I want, not the compiler writer(s).
Quoteth the original poster
And exposes you to possible trade secret and copyright infringement claims.
Really, if you know somebody else can take input "a", do "something magical" with it, and get output "b", are you really willing to admit that they are smarter then you?
To quote the previous poster:
Personally, I'd be happy if the could have ONE person doing the following between 3:00am and 4:00am:
- Blood pressure check.
- Glucose level check.
- Medicine.
- Tempeture check.
If they absolutely can't do that for some reason, at least have EVERYBODY SHOW UP AT THE SAME TIMESo, Dubya signs a tax-cut which includes lots of short-term and long-term capitals gains cuts, and Ballmer suddenly decides to sell a lot of stock.
Gee, I wonder why.
For those speculating on other things, I think Ballmer, et. al. *KNOW* that the profitability of MS is eventually doomed, but can't think of a way of getting out big time without crashing the company. So, they sell off here, they sell off there, and do the standard "screw the employee, shareholders, and everybody else not part of the good-buddy club" routine.
Ok, so this may be considered "offtopic", but...
You obviously don't live in Denver, Colorado. Or San Francisco, California. Or San Diego, California. Or anywhere else on this earth.
Say, how are you getting to /.?
Be an employee.
If you don't/won't/can't be an employee, don't bitch.
It's even easier than that. For every corporate customer, issue a seperate key. When one gets "leaked", you know who it was.
The exploit uses a buffer overflow to insert new code after the game has been verified as "being good". If you want to play something else, all you'd need to do is remove 007 game, insert new game, press "reset".