Re: [dvd-discuss] Bunner wins DeCSS trade secret appeal

["Arnold G. Reinhold" <reinhold(at)world.std.com>]

I think you guys may be missing the point. It appears the defendant 
in Barr-Mullin v. Browning didn't claim he reverse engineered the 
software, he claimed the he could have RE'd it and therefore it was 
not a trade secret.  Many, if not most, technology secret are 
susceptible to reverse engineering.  For the defendant's reasoning to 
stand I think he would have to show that de-compiling software is so 
easy that the sale of object code is tantamount to publishing the 
source. I think it was reasonable for the judge to conclude that it 
wasn't that easy.

I don't think a traditional reverse engineering defense would be 
available to the original author of the code, even if he could show 
he de-compiled a purchased copy when he went to his new employer. It 
would be hard to believe that the knowledge he gained at his original 
employer didn't aid his efforts.


Arnold Reinhold


At 5:31 PM -0800 11/4/01, Jeme A Brelin wrote:
>On 5 Nov 2001, David Wagner wrote:
>> I don't know.  If you start from the assumption that
>> reverse-engineering object card is hugely difficult, it's not clear
>> that the legal reasoning is unreasonable.
>
>I absolutely disagree.  The court shouldn't concern itself with the degree
>of difficulty or the speed with which someone accomplished a supposedly
>difficult task.  This is an impediment to the gifted or skilled.
>
>> And it seems to me that the difficulty of reverse-engineering is a
>> factual matter that can be measured by specific tests: for instance,
>> testimony that it took only five or ten hours to reverse-engineer the
>> cryptographic mechanisms in Netscape Navigator 1.2, or X hours to
>> reverse-engineer CSS from publicly available DVD players.
>
>The systems and technologies (state of the art) available at the time of
>the release of Netscape 1.2 (mid 1995) versus the state of the art in 1999
>when CSS was reverse-engineered.
>
>I don't see anything wrong with a person reverse-engineering something
>that is described as incredibly difficult in a very short time and
>claiming in court, "I can show it was reverse engineered, but it is a
>newly developed process that I maintain as a trade secret."
>
>Actually, how do such things pan out in court?  If someone has a secret
>process for doing something and it becomes the subject in a court case,
>how does one show the process to the court without revealing the secret to
>the competitor?
>
>J.
>--
>   -----------------
>     Jeme A Brelin
>    jeme@brelin.net
>   -----------------
> [cc] counter-copyright
> http://www.openlaw.org

At 1:10 PM -0800 11/4/01, Seth David Schoen wrote:
>Bryan Taylor writes:
>
> > Barr-Mullin, Inc. v. Browning, 108 N.C. App. 590, 424 S.E.2d 226 (1993).
>>
>> Plaintiff formerly employed Defendant as a software developer to create "a
>> lumber optimization system" to maximize the amount of lumber cut 
>>from each log.
>> After leaving Plaintiff's employ, Defendant developed and marketed competing
>> software. Plaintiff brought suit, alleging misappropriation of trade secrets
>> contained in the software source code, and moved for a preliminary 
>>injunction.
>> Defendant argued that the software could not contain trade secrets 
>>since it was
>> widely distributed in object code form, which it was possible to reverse
>> engineer. The ourt concluded that distribution in object code form alone did
>> not negate trade secret protection because of the great difficulty 
>>in obtaining
>> useful source code by reverse engineering the object code version. The court
>> granted a preliminary injunction, based upon testimony that it 
>>would have been
>> virtually impossible to have created the competing software, based solely on
>> reverse engineering Plaintiff's software.