Trade Secrets and the "Cherokee Nation Open Source License"? Yeah, right...

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.