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But, as we know, the eyrie overflows with nervous chickens. They fear they have undercooked their goose. | But, as we know, the eyrie overflows with nervous chickens. They fear they have undercooked their goose. | ||
But have they? Let us work this logic out, | But have they? Let us work this logic out, taking “public domain” to have its technical meaning. Imagine the argument that might unfold should one fellow have passed to another, under protection of [[OneNDA]], information that is in fact widely known, but is not yet out of copyright. For example, a prospectus, composed not six months ago and at great cost by learned counsel; undoubtedly a work of a creative effort, if not style or imagination. This tract attracts automatic copyright protection.<Ref>Pedants: can we agree, for the sake of argument, that even if enforcement of copyright is not insisted upon, its waiver was not so definitive as to put it “in the public domain”?<ref/> It has been published, for all the world to see — with that express intent, in fact — and is in no sense secret. Thus, according to the narrow reading of “public domain” a fastidious fellow would have us make, by contract, disclosure of this prospectus is still impressed with the obligation of confidence. I may not share it, upon pain of breaching the contract. | ||
Two observations: firstly, the fact that the rest of the world knows something is really beside the point. The rest of the world is not party to the contract. If you have received information on terms of confidence, then treat it that way. What does it matter that it happens to be public? Are you wracked with an urge to shout from the rooftops, just because the information is not, actually secret? This seems a curious urge. | |||
Secondly, if you should happen to disclose the information — perhaps someone else in your organisation, unaware of the confidentiality obligation, shares a separate copy obtained elsewhere — then what is the discloser’s loss? What damages has she suffered? | |||
Thirdly, making the outlandish supposition that a discloser brings an action before a court, how is a court likely to interpret the public domain? To give any sense to the contract — which is about secrecy, not commercial exploitation, remember — it will read that in a loose sense as meaning public. Yes, it is a redundant and ungainly way of expressing the idea, but what the canon of English commercial contracts are hardly a model of tight, elegant prose. | |||
For if the complaint is unnecessary fussiness, then why stop with “domain”? Any mention of public information, when describing something confidential, is fussy. | |||