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The Second Circuit is not an expert on software. It is an expert in law and modified open source code becomes proprietary code in eyes of the law for the purpos

by bravo22 11y ago

The Second Circuit is not an expert on software. It is an expert in law and modified open source code becomes proprietary code in eyes of the law for the purposes of GS employment agreement. They're not parsing how GPL or some other license might have applied. I encourage you to look at Michael Lewis's article[1]. This passage is relevant: "As Goldman hadn’t permitted him to release his debugged or improved code back to the public—possibly in violation of the original free licenses, which often stated that improvements must be publicly shared—the only way to get his hands on these was to take the Goldman code. That he had taken, in the bargain, some code that wasn’t open source, which happened to be contained in the same files as the open-source code, surprised no one. Grabbing a bunch of files that contained both open-source and non-open-source code was an efficient, quick, and dirty way to collect the open-source code, even if the open-source code was the only part that interested him." [1] http://www.vanityfair.com/news/2013/09/michael-lewis-goldman-sachs-programmer http://www.vanityfair.com/news/2013/09/michael-lewis-goldman...

tptacek 11y ago
Once again: his own lawyer stipulated these facts in his criminal summation. It's not in dispute; it is undisputed. He did not simply taken open-source software. You can add this to the list of things Lewis got wrong; it's a large and growing one. As Aleynikov concedes in his motion papers, the code he took from Goldman Sachs included a "purposefully designed" portion of the Goldman Sachs "proprietary, custom-built trading system." Indeed, the evidence showed that Aleynikov took a significant percentage of the proprietary source code for that system. While Aleynikov attempted to show that there was open source code embedded within the proprietary code and to identify the files in which that might be true, his expert witness was only able to identify one file among those taken by Aleynikov that both bore a Goldman Sachs copyright banner and appeared to contain open source code.
- bravo22 11y ago
  This does not contradict what Lewis writes or what I mentioned on my first post. The "proprietary, custom-built trading system." has a lot of infrastructure code to handle the incoming volume, ensure nothing gets dropped, and trades get evaluated. He doesn't seem to have taken the "decision making" part which would have been their secret sauce. Sure, the modified open-source code might have been protected by GS employment agreement but that doesn't mean that it was their secret sauce. It was infrastructure/boiler plate code. Additionally the fact that a code has a GS copyright banner doesn't mean that it was all brand-spanking-new GS-unique code. Even Lewis's article talks about the fact that a single file had open-source code and modified open-source code, aka proprietary code. This subtle language difference is exactly how a lawyer confuses the jury and it is difficult to counteract. Remember the SCO Unix v Novell fiasco!? Lewis brought together experts who reviewed the evidence on record, i.e. the actual source codes submitted at evidence at his first trial and they reviewed it and found it to be derivative open-source code to run queues, and run infrastructure.
  - tptacek 11y ago
    Have you read any of the court filings? Can you point to the one where it's established that Goldman's proprietary code is merely modified open source code? Even Aleynikov doesn't appear to be arguing that. Both sides in the trial had expert witnesses --- the Second Circuit didn't merely conclude on its own that the code was proprietary (in fact, they can't do that: appeals courts resolve disputes of law, not of fact). Your source, by the way, does not support your assertion about Lewis contracting experts reviewing the source code presented as evidence during the trial. Which makes sense: what would make you think Lewis would have access to it in the first place?
    - bravo22 11y ago
      Can you point to one instance where GS argues that it was the secret algorithm? They merely say code related to the trading platform. Lewis had access to the source code because it is presented as evidence in a trial and therefore matter of public record. No one from GS has said that what he has taken was an algorithm or anything related to decision making. Not one person. I never said the Second Circuit resolved a dispute about it being proprietary code. The defendant's own lawyer doesn't dispute that it was proprietary. But merely being proprietary is not sufficient for a trade secret violation. If you modify a config file for Apache that modified config file becomes proprietary but it is most likely not an essential trade secret that is the core of your business that someone else couldn't have come up with something similar to solve your problem. GS lawyer's say that proprietary code WAS trade secret and essential, whereas defendant says no it was modified open source code used for queueing etc. The jury is not sophisticated enough to differentiate between the two. See any patent case where a BS software invention is held up as unique.
- bravo22 11y ago
  To address his lawyer's admission... as I said modified open-source code becomes proprietary so the lawyer isn't wrong. That is why he said that he violated the confidentiality agreement but that isn't the same as stealing trade secret. A company's trade secret isn't the same thing as proprietary code. One of the legal qualification of trade secrets is that it is a method, process, etc. that isn't known or reasonably known by others for gaining advantage over competitors. It is their secret sauce. I don't see anything here that suggests he took the ALGORITHM or DECISION MAKING process, or any such thing.
  - tptacek 11y ago
    Can you point to the specific things you're relying on to determine what ALGORITHMS and DECISION MAKING processes may or may not have been taken? I'm not sure why I'm meant to be too concerned about which parts of the evidence you personally have or haven't seen.
  - gd1 11y ago
    Besides, you're reasoning about this on a faulty premise. This is a common misconception that people outside the industry have regarding HFT. Let me assure you, often the decision making is trivial, the answer to the question of what to do can be quite obvious. Then it's more about who can do it faster, and that's all about the plumbing. Which he stole.

by bravo22 11y ago

tptacek 11y ago

Once again: his own lawyer stipulated these facts in his criminal summation. It's not in dispute; it is undisputed. He did not simply taken open-source software. You can add this to the list of things Lewis got wrong; it's a large and growing one. As Aleynikov concedes in his motion papers, the code he took from Goldman Sachs included a "purposefully designed" portion of the Goldman Sachs "proprietary, custom-built trading system." Indeed, the evidence showed that Aleynikov took a significant percentage of the proprietary source code for that system. While Aleynikov attempted to show that there was open source code embedded within the proprietary code and to identify the files in which that might be true, his expert witness was only able to identify one file among those taken by Aleynikov that both bore a Goldman Sachs copyright banner and appeared to contain open source code.

bravo22 11y ago
This does not contradict what Lewis writes or what I mentioned on my first post. The "proprietary, custom-built trading system." has a lot of infrastructure code to handle the incoming volume, ensure nothing gets dropped, and trades get evaluated. He doesn't seem to have taken the "decision making" part which would have been their secret sauce. Sure, the modified open-source code might have been protected by GS employment agreement but that doesn't mean that it was their secret sauce. It was infrastructure/boiler plate code. Additionally the fact that a code has a GS copyright banner doesn't mean that it was all brand-spanking-new GS-unique code. Even Lewis's article talks about the fact that a single file had open-source code and modified open-source code, aka proprietary code. This subtle language difference is exactly how a lawyer confuses the jury and it is difficult to counteract. Remember the SCO Unix v Novell fiasco!? Lewis brought together experts who reviewed the evidence on record, i.e. the actual source codes submitted at evidence at his first trial and they reviewed it and found it to be derivative open-source code to run queues, and run infrastructure.
- tptacek 11y ago
  Have you read any of the court filings? Can you point to the one where it's established that Goldman's proprietary code is merely modified open source code? Even Aleynikov doesn't appear to be arguing that. Both sides in the trial had expert witnesses --- the Second Circuit didn't merely conclude on its own that the code was proprietary (in fact, they can't do that: appeals courts resolve disputes of law, not of fact). Your source, by the way, does not support your assertion about Lewis contracting experts reviewing the source code presented as evidence during the trial. Which makes sense: what would make you think Lewis would have access to it in the first place?
  - bravo22 11y ago
    Can you point to one instance where GS argues that it was the secret algorithm? They merely say code related to the trading platform. Lewis had access to the source code because it is presented as evidence in a trial and therefore matter of public record. No one from GS has said that what he has taken was an algorithm or anything related to decision making. Not one person. I never said the Second Circuit resolved a dispute about it being proprietary code. The defendant's own lawyer doesn't dispute that it was proprietary. But merely being proprietary is not sufficient for a trade secret violation. If you modify a config file for Apache that modified config file becomes proprietary but it is most likely not an essential trade secret that is the core of your business that someone else couldn't have come up with something similar to solve your problem. GS lawyer's say that proprietary code WAS trade secret and essential, whereas defendant says no it was modified open source code used for queueing etc. The jury is not sophisticated enough to differentiate between the two. See any patent case where a BS software invention is held up as unique.
bravo22 11y ago
To address his lawyer's admission... as I said modified open-source code becomes proprietary so the lawyer isn't wrong. That is why he said that he violated the confidentiality agreement but that isn't the same as stealing trade secret. A company's trade secret isn't the same thing as proprietary code. One of the legal qualification of trade secrets is that it is a method, process, etc. that isn't known or reasonably known by others for gaining advantage over competitors. It is their secret sauce. I don't see anything here that suggests he took the ALGORITHM or DECISION MAKING process, or any such thing.
- tptacek 11y ago
  Can you point to the specific things you're relying on to determine what ALGORITHMS and DECISION MAKING processes may or may not have been taken? I'm not sure why I'm meant to be too concerned about which parts of the evidence you personally have or haven't seen.
- gd1 11y ago
  Besides, you're reasoning about this on a faulty premise. This is a common misconception that people outside the industry have regarding HFT. Let me assure you, often the decision making is trivial, the answer to the question of what to do can be quite obvious. Then it's more about who can do it faster, and that's all about the plumbing. Which he stole.