[TUHS] Trade Secrets and Copyrights [was History of cal(1)]

[Theodore Ts'o via TUHS]

On Sat, Sep 20, 2025 at 05:13:45PM -0400, Clem Cole wrote:
> That said, in the BSDi case, the hacker community got it wrong.  AT&T went
> after BSDi/UCB under the trade secret claim, not copyright infringement.
> And, interestingly, the court did find *that AT&T owned the intellectual
> property*    — i.e., >>the core ideas<< which made UNIX so powerful and
> unique.  However, the moment the ACM paper was published, in July 1974, or
> Bach's 1986 book came out, AT&T could no longer call the UNIX IP a trade
> secret.

So inquiring minds want to know.  When was the first date that Unix
was distributed outside of Bell Labs, and when was the first license
which included the assertion that it was a trade secret?

According to Wikipedia ("which is never wrong"),

   In 1975, the first source license for UNIX was sold to Donald
   B. Gillies at the University of Illinois Urbana–Champaign (UIUC)
   Department of Computer Science.[27]

Note that 1975 is *after* the publication of the CACM paper.

There are hints that the Unix source code was shared before the first
license, which makes it even worse.  With copyright, without a
license, you can't give it to anyone else, and you probably only use
it because the person who gave it to you (if they had the authority to
do so) could be construed to have given you an implied license to use
it.

But with a Trade Secret, it can only be protected if whenever you
share it with someone outside of your organization, they must have
signed an NDA, and the protection of the trade secret is if that
person makes an unauthorized disclosure, (a) it's no longer protected,
and (b) you can sue that person into oblivion.  But once it's been
disclosed (say, Rich Salz uploads it to Usenet from a public phone),
if you can prove that it was Rich who did the dirty deed, you could
sue and take away all of his assets, but the trade secret is gone at
that point.

(After 2016, the Defend Trade Secrets Act does allow courts to order
ex-parte seizure of property to preven the dissemination of a trade
secret, but it's only under very restrictive situations, and it seems
to be mostly involve the situation where Alice has signed an NDA
promising to Bob that she won't some trade secret information, but
then Alice gives some physical object, such as a hard drive,
containing that information to Charlie.  In that case, Bob can ask the
court for an ex-parte seizure, if (a) Bob can describe with reasonable
particularity what is to be seized and where it located, (b) not
publicize the requested seizure, and (c) provide security for any
damages the third party might suffer if the court later determins that
the seizure was wrongfully granted.  So that's quite narrow, and if
the trade secret is located on thousands of Usenet servers all over
the world, the court is not likely going to give an order to Federal
Marshals to seize the hard drives from all of the Usenet servers in
order to prevent trade secret from being disseminated.  :-)

The bottom line is that if Bell Labs had *ever* distributed the
information to third parties without an NDA before trying to claim
that the methods and concepts of Unix were a "trade secret", it simply
was neer going to fly.  And to the extent that Bell Labs had
distributed Unix source code to MIT without the trade secret clause,
it was also doomed --- which is probably why AT&T wasn't willing to
tell third parties like say, Digital, that MIT had a valid Unix
license, since acknowledging that MIT had a valid license would have
given away the game once it became clear that it didn't have the trade
secrets clause.  And if students at MIT weren't required to sign an
NDA, any communications they had about how Unix worked would have
invalidate any of those concepts as being under the trade secret.

The bottom line is that trying to use Trade Secre was unbelievably
stupid, and suggests that either (a) Bell Labs and AT&T Lawyers were
incompetent, or (b) they weren't aware of prior dissemination of the
information that they were trying to claim were trade secret.  I
suspect (b) is much more likely.  Perhaps they never read the Unix
CACM paper.  :-)

It's also not surprising that hacker community got it wrong, because
it was such an insane and stupid legal tactic!

							- Ted