[A2k] Copyright Is An Exception To The Public Domain | Techdirt

[Paul Lehto]

I agree that trade secret law is a monstrous perversion of law.  The
Uniform Trade Secrets Act adopted in the vast majority of states
provides for punitive damages and attorney's fees for those possessing
trade secrets "unlawfully." If you trace those provisions out, it
appears to me that virtually any possession of a trade secret is at
least arguably illegal if not clearly illegal.  Such provisions are or
ought to be unconstitutional.

If by saying that trade secrets are "not IP" you mean the ought not to
be, properly speaking, then you are correct.  If by "not IP" you mean
under current US law, you'd be quite incorrect. I'm not sure which one
you mean, but I have two huge volumes right here on Trade Secrets law
and have litigated trade secret issues both as plaintiff and as
attorney, and I know for sure that trade secrets are classed as IP in
many places.  They shouldn't be because the true IP is always
ultimately headed for the public domain after a relatively brief
period of monopoly.

On 1/27/10, Mark Harris <mark@tracs.co.nz> wrote:
> On 27/01/10 3:53 PM, Paul Lehto wrote:
>
>> The exception to the general rule as to intellectual property is trade
>> secrets, making it a dangerous form of IP.  The IP rights in trade
>> secrets, which are nothing more than "information" in which reasonable
>> attempts are made to preserve secrecy, are potentially infinite in
>> duration.
>
> There are no "IP rights" in trade secrets. You keep it secret, or you
> don't. You can do that contractually, with employees or partners.
>
> If it gets revealed, you have no comeback other than whether the  manner
> of obtaining the secret was legal. See
> http://en.wikipedia.org/wiki/Trade_secrets :
>
> "The lack of formal protection, however, means that a third party is not
> prevented from independently duplicating and using the secret
> information once it is discovered"
>
>> Trade secrets are a form of IP essentially created at the will of the
>> corporation, and  potentially last forever, making it a dangerous form
>> of IP, and it can often co-exist with patents or copyrights in some
>> contexts such as software.
>>
> Untrue. There is nothing particularly new or dangerous about trade
> secrets. They have existed since craftsmen started differentiating their
> work from their peers by applying their own discoveries. While they are
> used by corporations, it is not an exclusive arrangement.
>
> By not formally protecting these things, they a) don't have to expose
> them to their peers and b) don't have their control limited by time.
> There is nothing dangerous in that. What is dangerous is in trying to
> protect that in law through tools like the USTA
> (http://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act,) a non-Federal,
> 'model law', and the Economic Espionage Act
> (http://en.wikipedia.org/wiki/Economic_Espionage_Act_of_1996)
>
> The social trade off for copyright, trademarks and patents is, as you
> note, that they do expire, that is, they get protected UNTIL they enter
> the public domain.
>
> To provide such protection to material that will never enter the domain
> is a monstrous perversion of your Constitution.  You should do something
> about that.
>
> Regards
>
> Mark Harris
> http://tracs.co.nz/gripping-hand/
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Paul R Lehto, J.D.
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