IP: Learning from the Goldman Sachs Trade Secret Case

As a computer science student in the '80s, I was well-steeped in the pioneering spirit that led to the modern open source code movement. Back then, we were far too busy exploring the potential of digital computers (remember artificial intelligence?) to concern ourselves with notions of ownership or commercialization. Those who were lucky enough to break new ground were happy to share their accomplishments with the programming community in the hopes of earning some modest peer recognition while helping others take the next step.

When computer programs became widely integrated into commercial society in the '90s, the free software movement began looking for ways to formalize the traditional openness among programmers. This formalization took the form of open source code licenses. These licenses allowed programmers to freely use "open source" software code in commercial products if they agreed to certain open source terms. Unfortunately, there was little uniformity between open source licenses, and "acceptable" open source terms ranged from the innocuous (using proper copyright notice) to the egregious (agreeing to license any of your own programs that contain open source code for free). While sophisticated companies certainly recognized the cost benefit of using "off the shelf" software, the attendant legal complexities have not always been routinely considered.

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Mark C. Scarsi

Mark Scarsi is a partner in the Intellectual Property Group of Milbank, Tweed, Hadley & McCloy, LLP, resident in the Los Angeles office.

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