Re: OT Re: Cherokee Nation Posts Open Source Legisation

[Helge Hafting]

On Fri, Jan 07, 2005 at 12:00:35PM -0600, root wrote:
> On Fri, Jan 07, 2005 at 02:03:30PM +0100, Helge Hafting wrote:
> > >If the license says the receipient of a piece of code must acknowledge 
> > >and protect the trade secrets it contains, then it's enforceable.  
> > >
> > Sure, but if there is a secret that must be protected, then it
> > isn't open source! 
> > 
> > By definition: open source is something I can give to absolutely anybody
> > with no reservations.  I.e. no need to protect anything. 
> > 
> > So your law means you can give someone code with the restriction that
> > they protect the trade secret within, but such code is not open source.
> > It may be less restrictive than many other commercial/proprietary licences,
> > (i.e. you can give it away for free, for example) but it is not _open_
> > with such restrictions. 
> > 
> > The linux source for example, can be given to anybody with no
> > reservations other than that the GPL is respected.  (The GPL does not
> > limit redistribution though.) 
> > 
> > Helge Hafting
> 
> It's as open as linux is today.  Think about it.  Linux really isn't
> "free" or "open" since it has the concept of personal ownership of 
> the code.  Linus himself responded to the GPL buyout offer and stated
> "his" code would remain GPL.  Linus was exercising his rights of 
> ownerhsip by making this statement. 
> 
Wrong.  Seems I have to explain in great detail:

The linux source may not be entirely _free_, because the GPL
says, among a few other things, that you can't change the licence.

But it is definitely _open_, because there is no restriction on who
you can give the code to.

Code with trade secrets in it may or may not be "free of charge"
but it is definitely not _open_.  As others have pointed out, the
laws about trade secrets _require_ that reasonable measures
be taken so the secret doesn't get out - or the secret is void.

Open source is something I can put on a public webserver, where even
someone's competitor is able to get at it.  Code with a trade secret
in it cannot be given away like that.  Making the secret part available to
the above mentioned competitor would break the secret, and is therefore
illegal if trade secret protection is required by licence. Therefore,
such code cannot be put in a public place, therefore such code
is _not_ open, even if it might happen to be "free of charge".

Helge Hafting
> "open" means it's open for contribution and attribution from others,
> but none of it is really "free" since someone owns it and can exercise
> the rights of that ownership, including deciding what license scheme
> it will be under, and in some cases, litigating to stop people from 
> using it in certain circumstances. 
> 
> Under the current Linux umbrella with the GPL, "open" and "free" 
> are ephemisms for "contribution" and "attribution."  The one exception
> this ;icense places is it removes the ability of other to coop or 
> steal an individuals work.  This model we are proposing is no different
> from what Linux operates under today -- with one exception -- an author
> can protect their work from being ripped off by various projects 
> claiming to be open and it prevents the "mob" mentality from 
> circumventing someone elses rights to their creative works by 
> preventing the majority from ousting a minority contributor 
> and taking their work by brute force.  
> 
> Something the GPL professes to provide to copyright holders, but really
> doens't.  This model also makes open source projects commerically 
> viable by allowing groups, individuals, and organizations the 
> ability to enforce their rights in state courts with trade secret 
> claims.
> 
> 
> 
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