Trade Secret Law and Risk

Trade-secret protection is fragile. It's designed that way. To maintain trade secrecy, the holder of the trade secret has to make a certain minimum effort to prevent it from being disclosed. There is good reason to suspect that SCO and other proprietary Unix vendors have not met this obligation, and can no longer claim trade-secrecy status in the Unix code.

The one time a judge has looked at this question, during the AT&T-vs-Berkeley lawsuit in 1993-94, he denied AT&T an injunction, noting that he thought it likely that AT&T had forfeited trade secrecy simply by selling source licenses in the way they had been doing.

For the SCO-vs.-IBM lawsuit, controlling law is that of the State of Utah. Under Utah law, a party wishing to show that information has trade-secrecy status must show that: it is (1) not generally known; (2) not readily ascertainable by proper means; and (3) the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

"Readily ascertainable by proper means" is probably the easiest one to break. We can probably get a court to find that "readily ascertainable" includes information disclosed through source code releases made available to educational institutions.

How to break trade secrecy

The following are all scenarios that could compromise trade-secrecy protection on Unix source code:

As a student, teacher, or professor, you had access to Unix source code. Your school did not require you to enter a non-disclosure agreement.
Your employer provided you with access to Unix source code and did not require, or failed to enforce, confidentiality — or failed to require that you erase your copy when you left employment.
A representative, employee, or agent of a Unix vendor provided you with access to Unix source code and failed to require that you enter a non-disclosure agreement.
As a working programmer, you received Unix source code from other working programmers who were not to your knowledge bound by non-disclosure agreements.

Enough evidence of these kinds with respect to any given Unix version would nullify the trade-secret status of the code.

If you still have copies of proprietary Unix source code, or can provide me with a live download pointer to same, that is especially interesting.

Legal risks

You take no risk by telling me you have had read access to Unix source code.

You should not be at risk in giving me download pointers to source unless you are yourself bound by an employment contract or nondisclosure agreement with respect to the source — under trade-secret law, it only takes one uncontrolled link in the chain for you to be in the clear.

Giving me an actual copy of source code, on the other hand, would need to be handled carefully to avoid copyright violation.

Please note that I have no intention of violating anyone's intellectual-property rights — rather, I am seeking instances in which some of those rights have been actually forfeited under controlling law.