On Wed, Feb 22, 2017 at 6:51 PM, Paul Ruizendaal <pnr@planet.nl> wrote:
I'm not a lawyer, but wasn't part of the background that prior to 1988
in US law one could not claim both copyright and trade secret protection,
and that for something to be copyrighted it had to expressly claim to
be copyrighted material, and be registered as such?
​Take this with what its worth (it came for free and I'm not a lawyer ....)
Your comment got me thinking, why would try to change and can you.  So I asked on our patent counsel this am to explain the difference.  For context in the USA we have Patent, Trade Secret, Copyright Registration and Copyright Protection.   Her reply to me was:

Copyright protection is automatic – as soon as the code is written it is considered protected.  Copyright registration is just a formality necessary to instigate litigation.  There is no time limit for registration.

 

Trade Secret is not compatible with copyright and patents (in a patent you have to disclose how to make and use the invention while a trade secret must be kept secret).  

 

You can get a patent while having the automatic copyright protection – remember that they protect two different things.  A patent protects the “functionality” while a copyright protects what is written, word for word.  So, you can get patent protection for what a software program does while having copyright protection for what is written.  A patent is a stronger form of protection.

 


​


 
because the legal folks thought that trade secret was a stronger
protection for software?
​At the time, you could not get SW patents, and it is not clear you could have patented UNIX as a whole anyway.​ But that begs the secrecy issue.   We know it had been disclosed as early as SOSP4.   My engineering training and what we teach folks I work with is, secret is secret.   Do not publish and no release, even under confidential NDA.    My company, like government folks who I have worked with, have different classification for different documents.   But "secret" means that.   Which means we would not be allowed to give a talk about the technology, nor would be we able to call it "secret" if we had given a talk about it.



I also seem to recall that the AT&T code base included original material
from CSRG where the copyright notice had been removed by USL.
​Yep - it's hard to live in a glass house.​


 

All in all, the USL lawyers probably felt that they would lose the case if
fought on the grounds of copyright violations alone.
​Which I fear, we will never know.​  But to me, if they thought copyright was not strong enough, how could anyone think it was a "secret" when by the definition of the 1956 consent decree they had to tell people?


 

I wish something like Groklaw had existed during the USL-UCB case: the
legal twists and turns would have been documented a lot better.
​Indeed....  ​



 
There is
​ ​
some material though, see:
http://www.groklaw.net/staticpages/index.php?page=legal-docs#bsdi
The amicus brief by the Regents, and the settlement make for interesting
​ ​
reading.
​Right, I recommend all read it.​


 
If the position taken by the Regents is correct, all of Unix
​ ​
up to and including 32V is in the public domain now.
​That's been said before and I think between this precedent of this case, the code for the old UNIX versions, given the ancient system licenses, the formal publication of Lions book et al, I personally feel good about the legality of the code being available today.   But everyone should ask their own lawyer and make their own decision definitively if they believe it or not.