NetNews Usenet Archive 1992 #16/NN_1992_16.iso/spool/comp/unix/bsd/3065

Internet Message Format | 1992-07-28 | 3.6 KB

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Path: sparky!uunet!usc!sdd.hp.com!mips!newsun!gateway.novell.com!terry
From: [e-mail] (Terry Lambert)
Subject: Re: AT&T sues BSDI
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Date: Tue, 28 Jul 1992 23:12:15 GMT
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In article <[e-mail]> [e-mail] (Roland Dunkerley) writes:
>I thought there was a precedent that no agreement you make with a
>company can prohibit you from earning a living in your chosen
>profession.

    This is true, but it doesn't necessarily imply that they have to let
you work for someone else in order to do it.  This is usually in the form
of a "non-competition" agreement.  I suspect that if the "contamination"
theory holds, wherein programmers are "contaminated" by AT&T source code
exposure, that this could be applied.  The "all reasonable precautions"
requirement to maintain a trade secret comes in the form of a non-disclosure.
For an employee, this is generally handled by binding the employee to any
non-disclosure agreements made by the company as part of the employee's
non-disclosure, which is what allows the employee to act as an agent on
the companys behalf.  Corporations, being a legal fiction, can not act as
agent's in their own behalf (a company does not modify/examine software;
an agent of the company does so in the companys    behalf).

    My cousin Mark won a case in Minnesota (where he was working for
an unnanmed embedded controls company that OEM's embedded controls to
places like IBM).  He won it on the basis that he could not be deprived
of his livelyhood, in that civil law takes precedent over contract law
(this decision is one of the reasons it's still illegal to contractualy
obligate a person into slavery, or to sell children [unless, of course,
you are the IRS]).  This also has precedent in case law which greatly
predates it.  This is why you can not have slaves, even though it is
not strictly illegal (you just aren't allowed to import, sell, or breed
them, nor create them with contract law).

    The brunt of the decision was that the company had two options:
they either had to allow Mark to work for another employer, or they could
prevent him from doing so while paying him a wage sufficient to match
his fair market value, which was determined by the competitor.  They chose
to pay him for the 1 year rather than let him work for the competition.

    If AT&T can make "contamination" stick, then they will also have
the option of allowing you to work for what, in their rather broad view,
is their competition, or, if they wish to enforce your nondisclosure to
your employer, they can pay you your fair market value for the duration.

    Another interesting fact is that the longer the term on a
noncompetition/nondisclosure agreement is, the less enforceable.  The longest
duration I have *ever* seen enforced by a court was 18 months.


    This means that if AT&T wishes to pick nits, they can hire us all
for 6-18 months... so read the source!  It's job security! 8-) 8-).

>LSI-11 processor with a re-arranged instruction set running AMOS, an
>exact clone of RSTS.

For my money, AMOS is more like Tops-10.


                    Terry Lambert
                    [e-mail]
                    [e-mail]
---
Disclaimer:  Any opinions in this posting are my own and not those of
my present or previous employers.