Conference 7.286::digital

        1)  Actually, let's NOT let the flames begin.  Flaming is not
        especially welcome here.  (I suspect there's a discussion of
        FLAMING in the HUMAN::ETIQUETTE conference; suffice it to say
        that it's usually pretty obvious.)
        
        2)  Meta-discussions involving the moderation of other conferences
        should probably involve the moderators of those conferences.
        So let's try to avoid the details of what's happening in MARKETING
        unless the moderators of that conference want to participate.
        
        Now, let a reasonable discussion begin..
        
        Tom

re Note 791.0 by CGOO01::DTHOMPSON:

>     Since the use of unofficial material - an employee's comments and
>     opinions - can be held against the corporation as though it were
>     official, is that judicial precedent not an infringement of the
>     employee's rights (let alone the citizen-corporation's rights)?
  
        It is only an indirect infringement of an person's rights
        (assuming that employees HAVE such rights to "free speech" on
        company time or using company equipment).

        As far as the judiciary is concerned, you can write or say
        anything you want in these notes conferences even if they may
        be "held against Digital".

        Of course Digital may not be so willing to let you say things
        that may be "held against Digital".  And I think that Digital
        is within its rights to restrict your use of its facilities
        accordingly.

        (Yes, I saw that disappearance of the Quarterdeck Patent
        topic in Marketing, and I believe that it was a totally
        unwarranted act of paranoia.  But I don't have responsibility
        for the system which hosts Marketing, and others do.)


>     Do I have any right to sue/countersue/whatever, should Digital be
>     punished for my expressing a PERSONAL opinion which might be wrong
>     if it were a CORPORATE opinion?
  
        First off, you couldn't sue anybody unless you were injured
        or violated.  If it was the corporation which took the heat,
        what would be your complaint?  Of course, if Digital turned
        around and fired you after it lost a big suit in which YOU
        wrote a note which worked against Digital's interests, then
        you might feel you were an injured party.

        Bob

    
    	Well, if Joe X says in a Notes Conference that Business B is
    	real bad, Business B can't see Joe X's opinion unless someone
    	extracts the Note and shows it to the ownerof Business B. This
    	is against DEC Policy anyway, but it has happened in the past.
    
    /prc

        Topic 830 in ASIMOV::MARKETING ("Quarterdeck Patent") is still
        there.  At the moment, the topic is write-locked and the notes
        are set invisible, but nothing has been deleted.  Apparently,
        one of the moderators (whose judgement I trust) has decided
        that there is some risk to Digital in some of the statements
        that were made in the notes there, and it's being discussed
        among the moderators.  This is reasonable.  So, at least so
        far, I don't see a reason for panic.
        
        RE: .5 -- I recently saw such a note in a conference that will
        remain nameless.  I forwarded a copy to the conference moderator
        and to the author of the note, pointing out the risk that such
        a note entails for Digital.  The note's author apparently wiped
        it out very quickly, since the conference moderator later sent
        me mail saying it had disappeared.  Wouldn't it be wonderful
        if all of us thought carefully about who might read what we
        write and how they might understand it?  (Sometimes there's
        very little room left for interpretation.)  [Myself included]
        
        Tom

    I am the "paranoid" moderator who TEMPORARILY (as stated in the
    conference) set the notes hidden in the MARKETING discussion of
    the Quarterdeck patent.  The reason I did so was that
    some of the replies contained employees speculating on whether
    or not Digital might be infringing on said patent.  This kind
    of talk is incredibly dangerous in my opinion should Digital
    ever be sued, as such statements can be used as evident of
    corporate intent against us.
    
    I've attached a note that is included in the MARKETING conference
    guidelines from the corporate Law department on the topic of
    "Employee Statements as Evidence of Corporate Intent".  As I
    indicate in my original posting of this memo, the MARKETING
    moderators will err on the side of caution (paranoia if you will)
    in such matters.  To do otherwise would be a disservice to
    our employer.
    
    Now as it happens, I have discussed this matter with my co-moderators
    and I am going to re-open the discussion after I return two of the
    replies to the authors with explanations; these replies I consider
    to place Digital in legal danger.
    
    I believe that it is the moderator's duty to consider the interest
    of and risks to Digital above any supposed "freedom of speech rights"
    that individual noters may think they have.   It is often a
    judgement call, but I have no regrets whatsoever about being
    cautious in such cases.  The harm to the individual noter is at worst
    wounded pride, the harm to Digital is potentially millions of dollars.
    
    In no way do I suggest that every possible topic needs to be examined
    for possible harm to Digital, though keeping it in mind is worthwhile.
    But notes like the one discussed above are particularly sensitive,
    and moderators should keep Digital's interests in mind.
    
    				Steve
    
             <<< ASIMOV::$1$DJA2:[NOTES$LIBRARY]MARKETING.NOTE;1 >>>
                   -< Marketing - Digital Internal Use Only >-
================================================================================
Note 1.2                Conference Purpose and Guidelines                 2 of 3
QUARK::LIONEL "We all live in a yellow subroutine"  106 lines   1-JUN-1987 12:53
            -< Employee Statements as Evidence of Corporate Intent >-
--------------------------------------------------------------------------------
    The contents of the following memo from Cary Armistead are particularly
    relevant to this conference.  Please take a moment to read this
    memo carefully, and follow its guidelines when writing notes here
    or anywhere else.  The moderators will tend to err on the side of
    caution when contemplating the appropriateness of notes in this
    conference.
    					Steve

I n t e r o f f i c e    M e m o r a n d u m


To: GEORGE CHAMBERLAIN                  Memo: 5347246525COR92
                                        Date: Wed 27 May 1987  8:44 AM EDT
                                        From: CARY ARMISTEAD
cc: MARIETTA ETHIER                     Dept: LAW
    TOM SIEKMAN                         Tel:  223-3980
                                        Adr:  MSO/M6 (DECMAIL @MSO)

Subject: Employee Statements as Evidence of Corporate Intent


This memo expands on some of the points made during my recent
presentation to the Finance Staff. 
        
Intent Counts -- 
        
The pending patent and antitrust litigation has created a need to
reissue an important message - DIGITAL'S INTENT CAN BE AN ISSUE IN
LEGAL CHALLENGES TO ITS BUSINESS CONDUCT AND MAY BE PROVED FROM
STATEMENTS IN DOCUMENTS WRITTEN BY EMPLOYEES. 

Under antitrust law proof of corporate intent may be a critical
element of a plaintiff's claim.  In some cases intent is all that
separates appropriate, vigorous competitive activity from predatory
conduct that may subject a company to significant liability. 
        
Internal Documents are Discoverable -- 

Some employees do not appreciate that documents marked "Company
Confidential" or "Internal Use" are not immune from discovery in
litigation and, therefore, may become available to our adversaries.
Nearly every document that our employees create can be admitted into
evidence at a trial.  It is, therefore, very important that everyone
takes care to avoid inaccurate, misleading, speculative or overzealous
statements in what they write. 

Areas of Concern -- 
        
Inaccurate statements about the intent of Digital's selective
distribution and licensing programs present one immediate area of
concern.  These programs have been examined closely.  They have strong
pro-competitive aspects and are legally appropriate and defensible.
However, if they are challenged, any uninformed, inaccurate
speculation by employees about the reasons for Digital's practices
might jeopardize our position and would undoubtedly increase the cost
of any defense. 

Aggressive comments capable of being misconstrued to suggest an
anticompetitive intent or the potential for an adverse affect on
competition sometimes appear in memoranda and presentation materials
proposing new products, promotional campaigns or distribution
practices.  Negative statements like "this program will make it
impossible for competitor x to compete" or "the attached proposal will
lock out x and y" are quite troublesome.  Invariably, more positive
alternative statements, in terms of product acceptance, technological
advantage and customer satisfaction, would more accurately convey the
message without the potential risk of later use by an adversary in an
attempt to prove predatory intent. 

The degree to which a company has "economic" or "monopoly" power in a
"relevant market" is often an issue in antitrust litigation.  The
existence of market power depends upon how the "relevant market" is
defined.  The word market has no precise definition and is used in a
wide variety of contexts.  Its use in business documents rarely
creates a problem, but should be avoided when referring to Digital's
customer base.  Documents inaccurately suggesting that Digital is
"dominant" or actually has economic "power" in a market segment are
clearly troublesome. 

Some General Guidelines for Drafting -- 
        
  o  Be accurate and avoid speculation or exaggeration. 
        
  o  Accentuate the positive aspects of programs, technologies and
products for customers and avoid speculation about their potential
negative impact on competitors. 
        
  o  Avoid statements that could be misconstrued to suggest an intent
to "control", "dominate" or "monopolize" a customer or market. 
        
  o  Avoid statements that could be argued to suggest an intent to
"lock out", "drive out" or "eliminate" competitors or "raise barriers"
to competition. 

  o  Remember that any document relevant to an issue in litigation may 
be produced to the opposition and used at trial.
        
It is difficult to assure that every employee will remain constantly
aware of the dangers of inaccurate, overly aggressive or ill-chosen
statements.  The topic has been included in a wide variety of Law
Department training modules and guides, and I understand that Marietta
Ethier will be addressing the subject further at an upcoming Finance
Staff meeting.  As education on the subject of inappropriate
statements in Company documents is a continuing effort, you should
feel free to circulate this memorandum broadly. 
        
    

    re: "Employee Statements as Evidence of Corporate Intent"
    
    That memo is also part of note 1.13 in this conference.
    
    --Simon (former moderator of DIGITAL and MARKETING)
    

    I must have left a lot of room for interpretation here, as things
    are already wandering off the point...
    
    1)  It was NOT my intention to complain or comment negatively about
    moderators either generally nor specifically.  I used the EXAMPLE
    of the removal of a note or two in marketing because it caused me
    to wonder in the first place.  Personally, I completely agree that,
    given the legal circumstances which apparently exist, the notes
    should be removed.
    
    2)  Any complaining/questioning of wisdom/whining or whatever is
    directed OUTSIDE this or any other corporation.  I have no problems
    with Digital requesting a limitation on my expression of opinion
    where it may be percieved that I am speaking for the corporation.
    
    When I speak to a customer, who I have approached as a Digital
    representative, then clearly I am liable to my employer to ensure
    that I present Digital in the best of all possible lights given
    my own abilities.
    
    When I speak within the company, orally or in writing, on topics
    about which I am responsible (or at least paid to be responsible)
    such as tactics to be deployed within the realm of my job, my
    interpretations of my customers and competitors actions within those
    accounts and yes, even Digital's response or lack of it to competitive
    situations, then clearly I must be cautious.  Whether I know what
    I'm talking about or not, I am supposed to know and Digital is liable.
    
    What I don't think is particularly just is that external forces,
    in this case the judicial system, coerce me indirectly into not
    discussing things which may be of personal interest.  Things which
    it would be obvious to a june-bug I can not possible express corporate
    intent.  Stuff like the Quarterdeck Patent, for example.  I would
    like to speculate on it, and discuss it with my fellow employees
    in a manner which Digital facilitates.  
    
    There is no flame here - there are many worse injustices in life, 
    after all.

    I have never felt that I could not express my opinions to my
    co-workers, even when those opinions were contrary to those of my
    management.  I do recognize that written ideas can be taken to
    court, so I am usually careful not to write anything that could be
    used in a way harmful to DEC (or myself, for that matter).  
    
    I participated in the Quarterdeck discussion because of a recent 
    (very positive) experience in a patent infringement case (not 
    directly involving DEC).  One of the remarks I made crossed over
    the moderators' line, and was returned to me.
    
    I appreciate the care that moderators take---it is too easy to write
    something in the passion of the moment that could be harmful to
    oneself, a fellow employee or DEC.
        John Sauter

So what some of you are saying is that the Network is not as secure as we
think it is????

Oh I see...

Lawyer: Yes , your honor, we found note 2346.234 to be in violation of said law.

How can anyone outside an employee give info to anyone outside of DEC, then
said employee is in Confict with said DEC policy...

I'm sure that all lawyers outside of DEC know about notes, YEAH RIGHT!!

Monty

This is what I've gleaned from various notesfiles and is my opinion only:

   Company X suspects company Y of evildoing to X. X then sues company Y
   for reason Z. It is possible for company Y to experience a legal
   process known as 'discovery'. During this period of 'discovery'
   company Y's documents can legally be searched for proof of the
   evildoing.
   
This is why moderators are very careful about some notesfile postings.
   
Let's see if this note will pas muster...  ;^)

Lee

	Picture the following:

	Loyal employee one day leaves DEC to go to work for someone else.
	Happens all the time. Now a year later his boss says, I wonder
	why such and such is happining. Former DEC employee says, "I'm
	sure it couldn't be because DEC is doing mumble though I remember
	there was talk in a notes conference about doing it."

	Lawyers called in who say "If DEC was doing mumble we could make
	a case. Let's file for discovery and if we find out that some
	DEC employees were talking about taking that sort of action we'll
	sue the pants off DEC.

	Now even if the people who were discussing mumble were not in a
	possition to actually do it DEC may now be in a mess of trouble.
	And no policy has been broken. 

			Alfred

re Note 791.7 by QUARK::LIONEL:

>             -< A moderator MUST keep Digital's interests in mind! >-

        Steve,

        I'm sorry if I indirectly accused you of paranoia (the
        Marketing moderators must be doing a good job -- I hardly
        know who they are).

        I just want to make the observation that Digital's interests
        are not limited to avoiding damaging legal suits.

        Among Digital's interests is communication among employees,
        including but not limited to direct project matters and
        general education in our business.  Employee morale is an
        interest of Digital, perhaps often undervalued.  Good morale
        usually requires a feeling that we are trusted.  Morale
        suffers when we (rightly or wrongly) feel that we are being
        "kept in the dark" without sufficient justification.

        The law almost always lags the changes in technology. 
        Electronic media such as notes conferences play many roles in
        the corporation, and one of the roles they play is that of
        the hallway or lunch room conversation.  While hallway
        conversations are not "written", notes conversations are
        written and retained.  Hallway conversations are not subject
        to subpoena, but written (and electronic) conversations are.

        Like a lot of Digits, I have a problem with this.  My
        colleagues are scattered around the globe.  Most of the
        offices right around me are empty and the people I work with
        most frequently are in other buildings.  I have my "hallway
        conversations" via Notes.  But in my "hallway conversations",
        there are certain things I can't say, and there are people
        who will stop me if I say the wrong thing.

        Perhaps I'm the paranoid?

        Bob

        RE: .14 -- Even though it's convenient to think of Notes
        conferences as being electronic conversations, until such time as
        law changes, they are not.  They are discoverable documents, as
        are other electronic communications.  Just as you can not assume
        that your phone isn't being tapped (legally), you can not assume
        that someone you would rather not read what you have written is
        doing so. 
        
        RE: .11 -- Your ignorance of the law is no excuse.  The basic
        process of discover, as described in .12 and .13, is how things
        really can happen.  If you don't believe this, read some of the
        popular accounts of the IBM antitrust trial.  Almost anything
        could and may be used.
        
        Tom

    Re: .15
    
    The points Tom Blinn makes in .15 are real.  Over the last two years or
    so I have been dealing with the Digital legal department on several
    issues I can't discuss here. The points about legal discovery in .15
    have been made repeatedly by the Digital lawyers, and I have seen them
    made independently.
    
    I do not find the legal restrictions onerous. The hard part is finding
    out what they are precisely enough and then learning how to avoid the
    problem areas. Once that has been learned, then, like other well-honed
    skills, it's not a big deal.
    
    The way I usually avoid the problem areas is to pick up the phone and
    call the person. That's why I have a phone in my office. This is just
    another area where notes isn't the right medium. (Another is resolving
    disputes of almost any type; the N-to-1 ratio just doesn't work for
    negotiations, but that's another topic.) 

    Then I guess we'll have to go for the "IBM Defence".  Print out every
    notesfile in the company, including archives, and demand that they all
    be properly considered as evidence.	 SOAPBOX alone should keep the
    court busy for a decade or two...
    
    	:-)

    re .14,15,16
                  
    I'd appreciate it if someone would take the trouble to ask US legal
    on this one.
    
    My question, simply, is how far does US law go?  (This one really
    does need legal opinion).
    
    I am not a US citizen or resident, and I work for a company (called
    Digital Equipment Corporation (Australia) Proprietary Limited) that
    is registered in the Australian state of New South Wales, and as
    such is subject to the laws of that country.  The fact that it is
    wholly owned by a US company is irrelevant.
                   
    Assume a major indescretion on my part.  I write something really
    disgusting, and before the moderators pick it up it gets leaked
    to a competitor, etc.  How is that Digital US can get sued for a
    comment I made?  Where does it end?  

Re: .18

>    Where does it end?  

It ends when the lawyers have all the money!

				-- Bob

        Very simply, Digital U.S. is an agent in your act, if the act
        was performed using computer systems located in the U.S.  I'm
        not an international data flow lawyer, but it's pretty clear
        that if you store the information on a computer system that's
        located in the U.S., Digital in the U.S. is involved.  If you
        simply pass the data through the U.S. (e.g., you used EASYNET
        to write a note in a conference in Europe from your terminal
        in Australia), it's likely that Digital U.S. could not easily
        be proved to be involved, but then again, who knows?  It's
        not just U.S. law that's involved, clearly.
        
        I trust you weren't planning to commit an indiscretion to find
        out what will happen? :^)
        
        Tom

    A question :
    Can *any* written (manually or electronically) document being used
    against DIGITAL, including any DECmail, minutes of meeting, personal 
    notes on an agenda, etc, etc. ?

    A Proposal :
    If what is said in .20 is correct (I am not a lawer), it would mean
    that what really counts is THE LOCATION where the info is kept.
    Therefore I suggest that :
      - all US notefiles are maintained in countries where such "inquiry"
        is not legally possible
      - each DEC employee has his DECmail account in these same countries,
        and starts the day with "set host".
    It will overload the network, but will save DEC intellectual rights.

    On top of that, if it is good for DIGITAL, it should be good for
    ALL the other US companies ! WHOAAA ! What a market ! And I am sure
    that the Telephone companies will support this strategy.
    
    Crazy ? Interesting ? Logically correct ? Possible ? A new Marketing
    tool ?
    

    All fascinating stuff. As someone remarked earlier, the law is always
    well behind technology. Since international nets came into existence,
    the word "frontier" is obsolete. Give the lawyers another 100 years
    or so and they will catch up ...
    
    One happy thought. How about encrypting everything - and making the
    decrypter DEC property ? That way if you can read it and don't work
    for DEC you are guilty of theft ..
    
    Mike Day
    

    I recall hearing about a Japanese manufacturer of three-wheel RVs
    who severely gummed up the numerous lawsuits against itself from
    the "looking for a deep pocket" rabble by copyrighting ALL corporate
    documents, thus forcing the prosecutors to coordinate the location
    of the SINGLE copy of each internal document used in the courts.
    
    What if we included a copyright notice on every screen of electronic
    documents that we have?  Or is this irrelevant...
    
    Paul

        These are all novel ideas, but in the face of the court system,
        unrealistic.  You don't win lawsuits through obstruction, but you
        could get yourself jailed for contempt of court.  Discovery would
        require decryption of documents.  It's simply not practical to
        move all of Digital's U.S. business "off-shore". 
        
        It's much easier, in the first place, to "do the right thing",
        which includes not breaking existing laws in the various countries
        where you do business, not violating social mores where you know
        what they are, and so forth.  I'm amused that people would even
        waste the time to try to thing of weasel ways to break the law and
        not get caught, which is what some of these suggestions sound like
        to me. 
        
        Tom

re Note 791.24 by DR::BLINN:

>         I'm amused that people would even
>         waste the time to try to thing of weasel ways to break the law and
>         not get caught, which is what some of these suggestions sound like
>         to me. 
        
        Tom,

        I don't think that ANY of the preceding replies is thinking
        of weasel ways to break the law and not get caught.

        They are simply musing whether there might be PERFECTLY LEGAL
        ways in which casual, informal conversations can be carried
        out, using electronic means, without their content being
        under the onerous cloud of the mere possibility of future
        discovery actions for reasons unknown at this time.

        Bob

    Where does the destruction of corporate documents to prevent their
    use in a potential discovery action or legal suit fall in the spectrum
    of things? Does it constitute obstruction of justice, or does that
    require the activity to be predicated by the actual legal action?
    
    Dave

    Somebody mentioned location of the information being the key criteria.
    I've thought about this and I'm not convinced.  Consider the opposite
    situation to the one I posed in .18, the conference in question
    is hosted on my [MYTHICAL] workstation in Oz.  A Digital US employee
    (and US citizen) is very indiscrete about a US competitor.  Because
    of the time zone difference I don't pick up the indiscretion until
    it's too late, Digital gets hit with discovery, etc.
    
    Now, as far as a US court is concerned the fault lies with the Digital
    US employee and therefore Digital US itself.  However, it has to
    ask me very nicely for the documentation, and while I'll quite happily
    tell a US judge to perform strange and unnnatural acts with his
    subpeona upon intimate parts of his antatomy that's probably not
    going to help Digital US. 

    Some uninformed points of view...
    
    Re: .21  
    
    Storing data in other places I don't think saves Digital.  I believe
    US parents are responsible in the US for the actions of their foreign
    subsidiaries - witness the Union Carbide suits for Bhopal (sp?).
    
    Re: .22
    
    Encryption would, if Digital held the only key, require Digital
    to decrypt.
    
    Re: .24
    
    When dealing with lawyers one must, to be successful, deal on their
    level.  I didn't use the word 'weasel', but I guess if that's your
    opinion...  :^)
    
    Don
    

    Re .28:
    
    > Encryption would, if Digital held the only key, require Digital
    > to decrypt.
    
    I would not be so sure.  The Risks Digest reported a case in which the
    government had confiscated an accused person's computer and tried to
    subpoena both documentation and the accused to help them operate it.
    The judge granted the right of the government to the documentation but
    refused to order the accused to help them.
    
    
    				-- edp 

    re: "discovery"
    
    The (very limited) knowledge I have about the legal process of
    "discovery" doesn't fit very well with what most here have written
    (like someone a few replies ago writing that "DEC then gets hit
    with discovery"). 
    
    It's a very complex procedure that requires the "discoverer" to have
    very specific requests for what he's looking for and allows the
    "discoveree" to avoid giving much help in finding it. 
    
    If someone more technically familiar with the process could provide
    some examples of how it works, I'm sure the General DEC Public would
    feel quite a bit more at ease and the moderators of most of the
    employee-interest conferences would have to find something else to
    worry about. 
    
    -joe tomkowitz

    At the risk of stirring partisan political feelings...
    
    Richard Nixon said a few years ago that when the existence of his
    secret tapes was first revealed during the Watergate scandal, he
    should have destroyed them immediately.  They were his, to do with
    as he pleased; no one had subpeonaed them, or even
    asked him for them.  He says he would have gotten away with it.
    
    (Of course, he thought he could get away with everything, but he
    was wrong.)

    re: .30
    
    I once worked for a telecommunications firm which had filed several
    anti-trust lawsuits against AT&T and NY Telephone.
    
    During pre-trial discovery, several lawyers from the firms representing
    the defendants showed up one day (we knew they were coming), and
    proceeded to search through our files (paper) looking for any documents
    of interest.  They hauled off several boxes of material, which was
    returned to us a few weeks later.
    
    If they had wanted to search our computer systems, we would have
    had to grant them access.  As it turns out, we didn't keep anything
    of interest on them.
    
    I'd be curious to know what safeguards are in place to prevent a
    competitor from slapping us with a lawsuit and using the opportunity
    to search our network to look for proprietary info.
    
    Al
    

    re: .32  pre-trial discovery
    
    I doubt that there's much hope of maintain *secrecy*, but secrecy
    is only part of the game in dealing with proprietary information.
    There are a number of us in the company who are privy to a lot of
    proprietary information, from our customers, and even competitors.
    But we are under legal obligations to see that Digital Equipment
    does not cause injury to those who have given us this information.
    There are similar restrictions on those who gain access to *our*
    proprietary information through the discovery process.
    
    Still, there's no doubt that the loss of secrecy hurts.  A competitor
    might benefit from having a better picture of our long-range plans,
    or be able to avoid repeating a costly mistake that we have made.
    I known of at least a few companies who have taken to copyrighting
    all of their proprietary information, in an attempt to prevent
    attourneys from wholesale xeroxing of their files.  I don't know
    if this is a workable defense or not, but I'm sure a few more
    lawyers will get rich from debating it in court ...

    Geoff

    re: .33
    
>    I known of at least a few companies who have taken to copyrighting
>    all of their proprietary information, in an attempt to prevent
>    attourneys from wholesale xeroxing of their files.  I don't know
>    if this is a workable defense or not, but I'm sure a few more
>    lawyers will get rich from debating it in court ...
    
    I believe that companies have begun doing this because of cases
    where it *has* proved to be a workable defense.  I read about one
    (or two -- I forget) such cases in a newspaper a few months ago.
    I was astonished that such tactics could hold up in court, but
    according to the article, at least one firm had won (at least) one
    case using this very strange approach.  I certainly wouldn't have
    predicted that copyrights could effectively stifle evidence required
    for court actions.
    
    -- Russ

	Whenever I have a customer propose a non-disclosure agreement to protect
his info from possible misuse by DEC, I reply with "..have you copyrighted any
of this information, because that is the proper way to protect it.  Then you can
"license" people to look at it.  That's how DEC does most of its proprietary
code and materials."

The following text about copyrights is now required in my group on all documents
I produce:

                           FOR INTERNAL USE ONLY
                   This information must not be disclosed
                  To persons other than DIGITAL Employees


                            Copyright (c) 1988 By
           Digital Equipment Corporation, Maynard, Massachusetts


          Preface


          The information in this document is subject to change
          without notice and should not be construed as a
          commitment by Digital Equipment Corporation. Digital
          Equipment Corporation assumes no responsibility for
          any errors that may appear in this document. This
          document does not describe any program or product
          which is currently available from Digital Equipment
          Corporation.

          This document and the specifications contained
          within are confidential and proprietary. They are
          the property of Digital Equipment Corporation and
          shall not be reproduced or copied or used in whole
          or in part as the basis for manufacture or sale
          of items without written permission. This is an
          unpublished work that is protected under copyright
          law. The existence of the copyright notice is not
          to be construed as an admission or presumption that
          publication has occurred. Unauthorized copying is
          strictly prohibited. All rights reserved.

    Re: .36
    
    Are you certain that copyright doesn't protect unpublished material?
    We used to have conf and prop notices on our listings, but to avoid
    having to have clean desk tops everytime we leave the office, we went
    to copyright notices on the advice of local dec legal eagles.
                                

    re: .38
    
    When working on a future product once, one of Digital's attorneys
    visited the group to explain the ways one could protect software.
    Digital attorney explained the use of both "proprieteray and
    confidential" and copyright as a catch-all, if one fails then
    the other is there for back up.
    
    Okay, some person invited into the building and wanders into your
    office and sees some document. That person did not sign an agreement
    to not make use of the informantion in that document. You left the
    document setting out for "public" view, i.e., you just published it.
    Now, your only recourse is to prohibit that person from obtaining an
    unauthorized copy by copyrighting the published material.
    
    Suppose you're a software developer witness in court. The defendant's
    lawyer asks you if you placed the copyright notice in your code to
    protect it under copyright law. If you say yes, then you have lost all
    ability to argue for protection under the trade secret act (proprietary
    and confidential) because you've just admitted to Digital's intent is
    to publish it.
    
    Note that Digital has a copyright notice in the sources that customers
    can purchase on microfilm, CD-ROM, or tape. But that proprietary
    code is not in the listings, i.e., not published. If it were published,
    it could no longer be protected as a trade secret. Even for the
    part that's published and protected by copyright, the customer signs
    a contract where the customer promises not use the knowledge contained
    in the listings to create competitive products, e.g., make a VMS
    work-alike.
    
    -George

    re: .37, .39
    
    That a document is copyrighted does not imply either that it has
    been published or that there is intent to do so.  The copyright
    laws are intended to allow an author to retain control over the
    distribution/ownership of a work.
    
    For instance, a school teacher who submits a student's essay to the
    school literary paper without that student's permission has violated
    the copyright law. (This is an example of an implied copyright, where
    the student does not have to include a notice to protect his rights,
    though inclusion of a notice would strengthen his/her position.) 
    
    In the case of copyrighting company documents, this would theoretically
    allow the company legitimate control over reproduction and distribution
    of the documents.  Copies made without authorization are illegal,
    whether "published" or not.

    --Pat

Re: .39
    
>    Suppose you're a software developer witness in court. The defendant's
>    lawyer asks you if you placed the copyright notice in your code to
>    protect it under copyright law. If you say yes, then you have lost all
>    ability to argue for protection under the trade secret act (proprietary
>    and confidential) because you've just admitted to Digital's intent is
>    to publish it.

That's outrageous.  Here I am, a software developer with no knowledge of the
law, and a lawyer asks me a trick question.  If I say "yes", I've just lost
DEC's trade secret protection for the software I wrote?!  If this is true, it's
further evidence, at least for me, that our legal system is completely broken.

What .40 said makes a lot more sense:  putting a copyright notice on a document
doesn't show intent to publish that document, it merely protects our rights
in case it's "accidently" published.

					-- Bob

    re: .39
    
>    Suppose you're a software developer witness in court. The defendant's
>    lawyer asks you if you placed the copyright notice in your code to
>    protect it under copyright law. If you say yes, then you have lost all
>    ability to argue for protection under the trade secret act (proprietary
>    and confidential) because you've just admitted to Digital's intent is
>    to publish it.
    
    Neither a copyright notice nor registration of a copyright implies
    intent to publish.
    
>    Note that Digital has a copyright notice in the sources that customers
>    can purchase on microfilm, CD-ROM, or tape. But that proprietary
>    code is not in the listings, i.e., not published. If it were published,
>    it could no longer be protected as a trade secret.
    
    Note that code which is considered proprietary and not generally
    available to customers contains the same copyright notices as
    the listings available on the microfiche, etc.
    

re: .35

>Whenever I have a customer propose a non-disclosure agreement to protect
>his info from possible misuse by DEC, I reply with "..have you copyrighted any
>of this information, because that is the proper way to protect it.  Then you can
>"license" people to look at it.  That's how DEC does most of its proprietary
>code and materials."

    I'd suggest you talk to the Corporate Law Department before dispensing
    this advice to anyone, especially customers.  Copyright law only
    applies to the manner in which an idea is expressed; it does not
    protect the idea itself.  Baker v. Selden, 101 U.S. 99 (1879);
    17 U.S.C. sec. 102(b).  In fact, if a given idea can be expressed in
    only one way even the expression is not covered by copyright.
    Morrissey v. Proctor & Gamble Co., 379 F.2d 675 (1st Cir. 1967)

   Even though Digital may copyright� unpublished material, we do not
   rely solely on copyright protection to protect proprietary information.
   Customers and/or vendors who are given copies of such material are still
   required to sign non-disclosure agreements.

   � No action is required to copyright unpublished material under U.S.
     law.  In this context I use "copyright" as a verb to indicate the
     affixing of a formal copyright notice and/or registration of the
     copyright.


re: .36

>The following text about copyrights is now required in my group on all documents
>I produce:
>
>                           FOR INTERNAL USE ONLY

   This should be "Digital Internal Use Only"


>                            Copyright (c) 1988 By

   Wrong year.  See comments regarding copyright notice, below.


re: .37

    re: .36
    
>    One small problem is that a copyright only applies to *PUBLISHED*
>    (public) documents.

   Under current U.S. law, unpublished works are explicitly covered
   by copyright protection (17 U.S.C. sec. 104(a)).  Articles II and
   III of the Universal Copyright Convention afford copyright protection
   to unpublished works.

   Prior to 1976 unpublished material was covered by common law copyright
   rather than federal statute.

>    In other words, a document may not legally be both
>    "proprietary and confidential" and "Copyright (c)" at the same time!!!

   This is incorrect.

>    More rediculous is the "(c)" which implies that registered copies were
>    given to the U.S. government (copies available in the Library of
>    Congress), or that there is an intent to register this public document
>    within one year. 

   The symbol "(c)" has absolutely no legal meaning under U.S. Copyright
   Law. the Universal Copyright Convention, or the Berne Convention.  U.S.
   Copyright law (17 U.S.C. sec. 401) requires a copyright notice on
   published works.  The notice must consist of:

	(a) "�" (c in a circle), "Copyright", or "Copr.";
	(b) the year of first publication; and
	(c) the name of the copyright owner

    The requirements of the Universal Copyright Convention (Art. III, para.
    1) are similar, except that "Copyright" or "Copr." are not recognized
    as part of the notice; � (c in a circle) must be used.

   The Library of Congress deposit requirements (sec. 407) apply only
   to published works and are not a prerequisite for copyright protection.
   Under sec. 408, registration is not a condition of copyright protection
   unless the work was originally published without a copyright notice.
   However, registration is a prerequisite for a copyright infringement
   suit (sec. 411).  The registration can be made after the work is created
   or published, but sec. 412 precludes awards for statutory damages or
   attorney's fees for infringements which commence prior to the effective
   date of the registration unless the work is registered within 3 months
   of first publication.

    Thanks for the clarifications, Jerry. One question: when is "first
    publication"? Is that the date of the ORIGINAL publication, or of this
    revision? Or both?
    
    Thanks
    
    Andy

    re: .45
    
    This reply covers U.S. law only.  I'll check the Universal Copyright
    Convention and the Berne Convention later, if someone else doesn't
    beat me to it.

    First, it's probably useful to define "publication" as it applies to
    U.S. copyright law:

    "Publication" is the distribution of copies or phonorecords of a work
    to the public by sale or other transfer of ownership, or by rental,
    lease, or lending.  The offering to distribute copies or phonorecords
    to a group of persons for purposes of further distribution, public
    performance, or public display, constitutes publication.  A public
    performance or display of a work does not of itself constitute
    publication.  (17 U.S.C. sec. 101)

    As I read the statues, changes to an existing copyrighted work are
    copyrightable (sec. 103(a)) as long as they "represent an original work
    of authorship." (sec. 101).  The extent to which the new copyright
    applies depends on how extensive the changes in the revision are.
    Minor changes (editorial revisions, annotations, and elaborations)
    are considered to be a "derivative work" (sec. 101) and are covered
    only to the extent that they can be distinguished from the existing
    work (sec. 103(b)).

    If the changes to the original work are significant enough to be
    considered a different version, the revision is considered a new
    work (sec. 101) and is fully covered by the new copyright.

    N.B. Section 101 doesn't offer any guidelines as to how much difference
    is required to be considered a different version as opposed to an
    editorial revision.  For our purposes I don't think the distinction
    is significant.  The major difference would be the copyright
    expiration date.  Under U.S. law, the copyright on a work made for hire
    (which covers just about anything Digital would be interested in
    copyrighting) extends for 100 years from the date of first creation
    or 75 years from the date of first publication, whichever expires
    first (sec. 302(c)).  This is far longer than the useful lifetime
    of most of Digital's copyrighted material.

    So does it make sense to see � 1986,1987,1988,1989 on some materials,
    as I've seen? 
    
    From what you said I get the idea that it should carry a copyright date
    of the last revision.
    
    Andy                                          

    re: .47

    Multiple copyright dates make sense for revised material since some of
    the material may only be covered by the older copyrights.  If the
    revision is such that the resultant work is considered a derivative,
    it's certainly correct to leave the old dates in the copyright notice
    since various portions of the material will be covered by different
    copyrights.  If the revision is significant enough that the revised
    work is considered new, I'm not sure if you are required to leave the
    old dates in the copyright notice, but I've never seen anything which
    would indicate it hurts.  If all the copyright dates are present in the
    notice, if someone were to successfully argue in court that the work is
    a derivative and not a new work, as you claim, they would not have any
    grounds to claim the copyright notice is invalid because the copyright
    date is misstated in your favor.

    N.B. The preceding analysis is my own, and is not based on any
    court decision I am aware of.  As always, consult a lawyer if the
    question applies to any work you are doing for Digital.

Moderators, let's get a legal memo in here.  This topic is full
of half-truths, mis-truths, wild speculation, and both informed
and uninformed opinions.

I find this a troublesome and dangerous topic because no doubt
many readers will leave thinking they now "know the law" when
it's clear that this note does not provide such elucidation.

Among other things, it is dominated by US law/opinion, when in
fact we have to protect our software and other intellectual
property worldwide.

================

One correction: the sales update article said that the listings
kits (fiche, cd, tape) contain only non-proprietary codes.

	THAT WAS AN ERROR.  ALL OF VMS IS PROPRIETARY.  100%

The author _meant_ to indicate that certain codes are censored
for various reasons, mostly to protect security and/or _some_
trade secrets.

This _not_ speculation on my part.  I've discussed it with the author.

- greg

re: .44
    
>   However, registration is a prerequisite for a copyright infringement
>   suit (sec. 411).  The registration can be made after the work is created
>   or published, but sec. 412 precludes awards for statutory damages or
>   attorney's fees for infringements which commence prior to the effective
>   date of the registration unless the work is registered within 3 months
>   of first publication.
    
    And that's point! Unless you can sue for damages and fees, there's
    little protection. Registering puts some teeth into the enforcement.
    When you register a document, you must submit copies of the document to
    the copyright office (I have some copyright application forms, and they
    require copies of documents to be attached). That is, the registered
    document goes onto the public record. Once on public record, there is
    no longer trade secret information in that document. It's difficult to
    have it both ways -- both protected (real protection) by copyright
    and protected as trade secret. 
    
    -George

        Speaking as a moderator:  I agree COMPLETELY with Greg Robert
        regarding this topic.  Some of the opinion offered here is just
        plain flagrantly WRONG.  
        
        My understanding of copyright law is, at best, that of a concerned
        and somewhat informed person, not that of a person trained in the
        law.  Given that background, Jerry Eckert's replies come closest
        to my understanding of the actual law, as interpreted by the
        courts, of any so far.  Some of the other replies are WAY OFF
        BASE. 
        
        Since many of these replies assert that the law says one thing or
        another, I intend to extract this topic and ask that a member of
        Digital's Law department review it and state the actual law, as
        our Law department understands it. 
        
        I would further like to ask that anyone offering further opinions
        on copyright law (or any other matter of law) clearly state in
        their reply whether they are trained in matters of law.  In other
        words, if you're a lawyer who specializes in the area, so state;
        if you're not, so state. 
        
        Thank you.
        
        Tom

    re: 30 something "encrypting data ... cannot force user to decrypt"
    - sure, individuals have a constitutional right to not be forced
    to incriminate themselves, and decrypting private information should
    surely fall under that right.  I doubt that corporation rights have
    the exact same constitutional protection, however.
    
    	RMM
    

    Re: .36
    
> The following text about copyrights is now required in my group on all documents
> I produce:
>
>                               FOR INTERNAL USE ONLY
    .
    .
    .
>          This document and the specifications contained
>          within are confidential and proprietary.
    
    If these documents are "Digital Confidential", it seems like they
    should say so, and in a more conspicuous place.  And they shouldn't say
    "FOR INTERNAL USE ONLY", which could lead one to believe they're
    classified "Digital Internal Use Only".
    
    I'm not trained in matters of law.
    							Larry

    Have three lawyers look at the same laws and you'll probably get
    three interpretations -- otherwise there'd be a lot less need for
    judges and juries.
    
    For those that think copyright protects unpublished works consider
    the following:
    
    Upstart song writer, X, sticks a copyright notice on his music. Friends
    sometimes come into his house while he's composing music on his
    guitar... Six months after writing the song, X, hears it being played
    by big name, Y, on his car radio!
    
    X goes to his lawyer (L):
    
    X: This guy ripped off my song! Listen to his tape and mine.
    
    L: Yes, it's obvious from the tapes that the song was copied. All
    we have to do is determine that your song was copyrighted before
    Y's.
    
    X: Sure. See the notice, "Copyright (c) 1987 of X"?
    
    L: Did you register the copyright?
    
    X: No. I didn't want to publish it until I had enough songs for
    an entire album.
    
    L: Well you could type in any date on the copyright you want. How
    are you going to prove you wrote the song first?
    
    Let's face it, unless a thief is stupid enough to reproduce an
    unpublished work's copyright notice, it can be very difficult to prove
    authorship. A software engineer would have to produce an engineering
    notebook that's been notarized, or some other legal evidence. How many
    of the software engineers in Digital that put the standard copyright
    notice at the front also do the other things necessary to prove
    authorship? Fewer than 1% probably. 
    
    -George

    re: .55
    
>                A software engineer would have to produce an engineering
>    notebook that's been notarized, or some other legal evidence.
    
    A fire storage backup tape containing the program or document
    in question ought to be sufficient.
    

        George, it's altogether possible that the copyright laws that
        apply to recorded music (e.g., a cassette tape) are different from
        those that apply to sheet music (paper), which in turn may be
        different from those that apply to books, which in turn may be
        different from those that apply to, say, computer programs. 
        
        So your scenario may be completely irrelevant.  I'm not expert
        in copyright law.  I don't know.
        
        Tom