The prime reason this argument goes nowhere is that it is a well-maintained policy that technology experts need to maintain proficiency and retain community involvement in an area, for competency to be maintained.

Since the true roots of open source was university interactions / communications / projects, often sanctioned and even widely promoted by industry, any judge I would think would consider this a "no-brainer" decision to write.

Consider the USL/Berkeley case for a moment, which I believe centered mostly around trade secret, since it was obvious that copyright was ill maintained from the start. The judge felt most vulnerable to unknowingly allowing the release of trade secret, and didn't by the "replacement" arguement of the defendants.

Why "Source Code Secrets" book series was written was precisely about speaking to the potential secrets involved with operating systems, starting with the kernel and working outward. By painstakingly describing line-by-line issues, as if explaining to a judge, one can get to the heart of what the property really is. In the end, this is what we beleived was truely "Open Source", since anybody could see the scholarship needed for the program to work, as standing in the clear, irrespective of the cloaking attempted in various IPR claims.

We could make this book because of background in the area of systems technology, not only with UNIX, BSD, but dozens of other prior systems as well - they all have intermingled roots. It was a demonstration of proficiency, and the various commercial enterprises never gave a thought of litigation (many bought up hundreds of books and gave them away to customers with pride).

So the only way I can see this argument is as if an open source creation is regarded as an outright theft from an employer, or as an intentional deception of an employer's licensor of some random property. Judges, journalists, and the system are generally very good at sniffing these out. And in general, those wary of such steer clear of such anyways, because an ill end is in the offing.

But what Ken's getting at here is the real story. As long as F/OSS maven's affect an air of "gangsta hip", moving away from button down professionalism, arguments of criminal shading become obvious weapons of reputational destruction.