Sharon K. Sandeen

The Third Party Problem: Assessing the Protection of Information Through Tort Law

A lot of attention has been paid in recent years to the question whether intellectual property (patents, copyrights, trademarks, and trade secrets) and other forms of information are property. To many owners and creators of information, the characterization of information as property provides the moral and legal imperative for its protection. This article transcends the property/not property debate to focus instead on what seems to be at the heart of the information industry’s interest in greater protection for information: curing what I refer to as “the third party problem.”Currently, information owners can use a combination of legal doctrines – principally copyright, trade secret, and contract law – to protect information that they voluntarily choose to share with others. However, none of these bodies of law provide absolute protection, particularly with respect to information that falls into the hands of a third party; that is, a person with whom the information owner does not have a direct relationship. The question addressed by this article is: Given the incomplete solutions to the third party problem that are provided by copyright, trade secret, and contract law, should information owners be given additional means of protecting their information and, if so, why? To answer the foregoing question, the article focuses on the public policy rationales that underlie existing doctrines of third party liability. It begins with a brief overview of the existing means of protecting information with particular emphasis on the policy reasons behind the limitations that are placed on such protection. Obviously, any effort to expand the protection that is currently provided for information must consider why such protection is limited and whether there is a sufficient public policy basis for altering such limits. As discussed in the final section of this article, the challenge for information owners who want additional solutions to the third-party problem is to articulate a sufficient rationale for such protection while respecting the important public policy that underlies the existing limitations. Merely labeling information as a form of property does not go far enough. Instead, they must either explain how and why the acts of a third-party constitute actionable independent wrongs or identify ancillary benefits to society that make the imposition of third-party liability without fault worthwhile.

The Value of Irrationality in the IP Equation

Intellectual Property Law examines emerging intellectual property (IP) issues through the bifocal lens of both economic analysis and individual or social justice theories. This study considers restraints on IP rights both internal and external to IP law and explores rights disequilibria from the perspective of both the rationale of IP law and the interface with competition law. The expert contributors discuss the phenomenon in various contexts of patent, trade secret; and copyright, each a tool to incentivize the growth of knowledge beyond innovation and creativity.

Toward a Federal Jurisprudence of Trade Secret Law

The May 2016 enactment of the Defend Trade Secrets Act of 2016 (DTSA), which created a new federal civil cause of action for trade secret misappropriation, raises a host of issues that federal courts will have to consider under their original subject matter jurisdiction, rather than applying state law through the courts’ diversity jurisdiction. This means that for the first time, an extensive body of federal jurisprudence will be developed to govern the civil protection and enforcement of trade secrets in the United States. In addition, due to the DTSA’s changes to the existing federal criminal law governing trade secrets, the Economic Espionage Act of 1996 (EEA), federal courts will be required to further develop their EEA jurisprudence. Because the DTSA is modeled after and includes many provisions taken directly from the Uniform Trade Secrets Act (UTSA), it is widely anticipated that federal courts will consult and rely upon existing case law regarding the UTSA to decide how to apply the DTSA. However, nothing in the DTSA’s language mandates such an approach, and federal courts may elect to depart from state law precedent in some situations. Moreover, there are unique aspects of the DTSA, such as the ex parte seizure provision and protection for whistleblowers, which will raise questions of first impression for the federal courts. Additionally, because preexisting provisions of the EEA will be subject to greater scrutiny due to the number of civil cases that are likely to be filed under the DTSA, unresolved issues under the EEA are also likely to be extensively litigated. While it is premature to catalogue all the issues that litigants may raise in trade secret cases brought under the DTSA, this Article seeks to identify and analyze several major areas of anticipated dispute and to provide a framework for resolving them. Part I begins with a brief introduction to U.S. trade secret law. Part II details the origins and legislative history of the DTSA. Part III discusses the interpretive rules and methodologies that are likely to govern federal courts’ development of a federal jurisprudence of trade secrecy, including the circumstances under which they might rely upon existing state trade secret case law or instead develop a “federal common law” of trade secrecy. Finally, Part IV examines how key provisions of the DTSA should be interpreted in light of these rules and methodologies, organized into four subcategories: (1) “new” language in the DTSA that does not appear in state trade secret laws; (2) language “borrowed” from the UTSA that is defined by statute; (3) language “borrowed” from the UTSA that is not defined by statute; and (4) issues not clearly addressed in either the DTSA or the UTSA. In doing so, this Article provides a framework for future analysis of other provisions in the DTSA.

US TRADE SECRET LAW AND THE UNIFORM TRADE SECRETS ACT

3. US TRADE SECRET LAW AND THE UNIFORM TRADE SECRETS ACT

Trade Secrets and Climate Change: Uncovering Secret Solutions to the Problem of Greenhouse Gas Emissions

This chapter examines whether trade secret law can be altered to require the disclosure of secret solutions. It begins with a brief overview of trade secret law and ends with ten ideas for increasing the disclosure of information that might solve the problem of climate change.