As seen on the Interesting People list ("You Can't Make This Stuff Up"), a former chief scientist of Novell, Jeff Merkey, is planning on releasing a new operating system (GaDuGi) under an open source license, the Cherokee Nation Open Source License, which purports to include trade secrets:
Cherokee Indians Encircle Open Source Or How the GPL Might Wind Up with Arrows Sticking in It
by Maureen O'Gara
[...] Merkey has rewritten NetWare and merged it with Linux to create a distribution called GaDuGi, a Cherokee word for the work crews that used to engage in what we might call community service for the good of the whole tribe.
He says he has turned GaDuGi over to the Cherokee Nation, which will hold the copyright. GaDuGi will be distributed under a new Cherokee Nation Open Source License that is still being written, but reportedly differs from other open source licenses in recognizing trade secret rights in the underlying code.
In anticipation of the move, there is also draft trade secret legislation pending before the Nation, due to be submitted for ratification by the Full Tribal Council on February 14, that would recognize individual as well as corporate trade secret rights. Otherwise it reportedly apes the Uniform Trade Secret Act in effect in the United States. [...]
Later, a grad student from CMU, Patrick Wagstrom, points out a few problems with calling such a license Open Source in a follow-up posting to IP, "more on You Can't Make This Stuff Up". He notes:
The OSI has a strict definition of what constitutes Open SourceTM.
Linux is GPL'd, so any distribution of the two would be tricky and likely illegal in the US.
Not to mention the most fundamental flaw: once a trade secret is published in public with good faith, it ceases to be a trade secret (conditions for trade secrecy protection require that a piece of information in question must, indeed, be secret and protected as such).
From Section 1 of the Uniform Trade Secrets Act (which is mentioned in the story as possibly being enacted in the Cherokee Nation):
(4) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The plan to distribute software source code would fundamentally run into both parts of this definition: 1) once the source is known, the secret is now likely "generally known" and even more likely "readily ascertainable" under (4)(i) and; 2) releasing the code to the public would definitely undermine secrecy under (4)(ii).
They could encapsulate the "trade secret" parts in obfuscation or purely as binary modules, but this wouldn't be open source nor Open Source and certainly not compatible with Linux. BSD, yes. There's a way to protect trade secrets in open source software: don't release the source code of the secrets! That's what Apple is doing.
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It's not a pretty picture.
1) I am quoting excerpts from the linked story. Under 17 USC 107 (the Copyright Act) I am permitted to quote without permission. Specifically,
If Client Server News feels similarly, they are welcome to file a takedown notice under section 512 of the Copyright Act with my ISP, UC Berkeley.
2) My only contribution to this debate was concerning trade secrecy. The only way you can get around the limitations of the GPL viz a viz Linux is to have a "compilation" much like RedHat does... as of now, I just don't have enough information about GaDuCi to say more. (There are more than a few ways you could distribute it legit.)
" ....as of now, I just don't have enough information about GaDuCi to say more. (There are more than a few ways you could distribute it legit.) ..."
Thank you for evidencing the intelligence and open mindedness to accept the possibility there can be an open source instrumentation that can contain protectable trade secrets. We don't live inside a university and we have been litigating for over 200 years in the real world -- much of that time with people shooting at us (really). Trust that we may know a little bit about this and what we are doing.
:-)
Thanks
But Jeff Merkey, the author of the GaDuGi StealWare, doesn't lives in the Real World.
According to Judge Schofield, in Novell vs Timpanogos (1998):
"Merkey is not just prone to exaggeration, he also is and can be deceptive, not only to his adversaries, but also to his own partners, his business associates and to the court. He deliberately describes his own, separate reality."
Now Merkey proposes to hide behind Cherokee Laws to launder purloined IP and to escape his GPL obligations.
_Arthur
Is she serious? Is this "journalism"? I thought they covered yellow journalism in English 101! My God!
Check out these drops from the article. The following are not quotes from a Nation member, but rather from O'Gara herself.
"...the Cherokees would ride roughshod over open source's precious GPL..."
"...that could be a bit of a problem for the GPL huggers."
"...wily to the ways of the white man..."
Ok, from just a professional standpoint, why would I even consider this for a second? I mean, they are acting like I have to consider this from a reparations and ethical standpoint. HELL NO!
Hey Jeff, remember Martin? I am sure we would have a lovely conversation on this. I am sure he would kick your tail for this stunt.
This is the more racism, bigotry and hatred in this "professional" writing then I have seen in a long time from any "professional "article from an "independent" source. Maybe her and the media arm of the KKK and al Queda can get together and compare methods.
Ok, we have seen landgrabs before. but this is first time it has ever been done with such obvious racial overtones with it.
I am part Cheerokee man, and that scares me. he is creating a situation where if anyone sues it will be the Nations with fat targets on their asses.
He is hiding behind history and empathy, he is doing it for his own gain, and I feel at this point it deserves to have a reaction from the community beyond the silence of total confidence.
The more I read this, the more I think that Jeff is USING the CN for his own advancement. This might be the worst use of attempted racial empathy I have ever seen. Everyone KNOWS that high tech costs high dollars to defend, and by hiding behind the Nations he is putting an already disadavantaged group at risk of being the target of some high dollar suits.
Hiding behind 200 years of other's sacrifice is nothing but shameful.
place cursor over any name read the source
http://www.linuxbusinessweek.com/story/47716_f.htm
look for www.ga ga du du .org. Also google for merkey.net (a personal website like, smith.net or jones net jeff merkey found the and made life interesting for them he gave them lemons they made lemonaode Seraphim Proudduck is a google thing)
http://marc.theaimsgroup.com/?l=linux-kernel&m=110366372620023&w=2
http://www.cherokee.org/CurentNewsRelease.asp?ID=1415
Please do not think that Merkey is a representive for the Cherokee's, Living in Okla. and being part Cherokee, I know he is the rare exception.