A Bibliography About Federal Trade Secret Law Reform (Guest Blog Post)

Eric’s introduction: patent and copyright reform get a lot of attention, and they have overshadowed proposals to create a new federal trade secret civil cause of action that have been floating around in Congress for a few years. I’ve previously called the federal trade secret initiative “the most significant IP policy proposal you aren’t paying attention to.”

These proposals are favored by a small number of trade secret owners and ignored by virtually everyone else, even though a new federal trade secret law would be a dramatic change in US intellectual property law and have potentially radical implications for the Silicon Valley. Unless a coordinated opposition emerges, these proposals are destined to pass eventually. Fortunately, last year, Profs. David Levine (Elon) and Sharon Sandeen (Hamline) sent a letter to Congress on behalf of many law professors opposing the latest proposal. That letter–perhaps the first real opposition that Congress heard–successfully slowed the trade secret bill down a bit, just long enough to keep it from passing that session. The current Congressional session is preoccupied with patent reform and maybe copyright reform, so we haven’t heard much about a resurrected trade secret bill. Nevertheless, the bills will be coming back, and they will remain inevitable unless they face opposition.

Thus, I asked David Levine if he could prepare a bibliography of the literature opposing a federal trade secret law. My main goal was to get all of the opposition material into a single document, so that we could realize just how many smart people are opposed–and perhaps coordinate our efforts better. Many thanks to David for doing this.

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by David S. Levine

Last year, Congress considered two bills designed to create a new private federal cause of action under the Electronic Espionage Act (EEA). The two bills, the “Defend Trade Secrets Act of 2014″ (“DTSA“) and the “Trade Secrets Protection Act of 2014″ (“TSPA“) were designed to give trade secret plaintiffs another avenue of attack against putative trade secret misappropriators, ostensibly to address the real problem of cyber-espionage and cyber-misappropriation. Alas, the bills died but are expected to be reintroduced, perhaps in modified form, later this year.

Especially compared to more high-profile federal intellectual property law reform efforts, like those focusing on addressing the issues surrounding non-practicing entities, also known as patent trolls, trade secret reform efforts have received little attention. To the extent that there has been coverage, most of it – produced primarily by the bar and advocacy groups (gathered and cited here) – has been generally uncritical and/or supportive. Indeed, some of the coverage has been uncritical and supportive to the extreme.

To provide a different perspective, Sharon Sandeen and I have worked together over the past several months to raise concerns about the bills’ efficacy and effects (intended and unintended). We have become active opponents of these efforts because we believe that the bills will not address any perceived or real trade secret misappropriation harm, but rather will create new problems (like “trade secret trolls”) or exacerbate existing ones (like creating more confusion, not less, about the parameters of trade secret law generally). In the interest of full and thorough consideration of these bills should they be reintroduced in existing or modified form, the below provides other recent sources that address questions about and/or oppose the need and/or desire for these bills.

Law Review Articles and Congressional Reports:

Brian T. Yeh, Protection of Trade Secrets: Overview of Current Law and Legislation, Congressional Research Service (September 5, 2014).

Christopher Seaman, The Case Against Federalizing Trade Secrecy, 101 Va. L. Rev. __ (2015).

David S. Levine and Sharon K. Sandeen, Here Come the Trade Secret Trolls, 71 Wash. & Lee L. Rev. Online 230 (2015).

Eric Goldman, Do We Need a New Federal Trade Secret Law?, Santa Clara University School of Law (Sept. 19, 2014).

Zoe Argento, Killing the Golden Goose: The Dangers of Strengthening Domestic Trade Secret Rights in Response to Cyber-Misappropriation, 16 Yale J.L. & Tech. 172 (2014).

Letters:

Professors’ Letter in Opposition to the “Defend Trade Secrets Act of 2014” (S. 2267) and the “Trade Secrets Protection Act of 2014” (H.R. 5233), (August 26, 2014).

Blog Posts:

Bill Donahue, 6 Big Problems with Federalizing Trade Secret Law, Law360 (Sept. 12, 2014).

Christopher Seaman, Guest Post: The Case Against Federalizing Trade Secrecy, Patently-O (September 2, 2014).

David Almeling, Guest Post: Defend Trade Secrets Act – A Primer, an Endorsement, and a Criticism, Patently-O (May 30, 2014).

David C. Clark, Law Professors Object to New Trade Secrets Acts Proposed in Congress, Trade Secrets and Noncompete Blog (Sept. 10, 2014).

David S. Levine, The Dangers of the New Trade Secrets Acts, Freedom to Tinker (Aug. 27, 2014).

David Pruitt, Will Congress Enact Federal Trade Secrets Act in 2015?, The National Law Review (Dec. 12, 2014).

Dennis Crouch, Ready to Nationalize Trade Secret Law?, Patently-O (Aug. 27. 2014).

Edward Pappas, et al., The Defend Trade Secrets Act – Trade Secret Protection Act – Finally, Federal Protection for Trade Secrets?, Bloomberg BNA (Nov. 3, 2014).

Eric Goldman, Congress is Considering a New Federal Trade Secret Law. Why?, Forbes Tertium Quid (Sept. 16, 2014).

Michael Risch, Do We Need a Federal Trade Secret Statute?, Written Description (Jan. 22, 2015).

Steve Borgman and Janie Ta, Weighing The Proposed Federal Trade Secrets Law, Law360 (June 16, 2014).

Sydney Ross, Trade Secret Owner’s Dream: A Nightmare to Others?, American University Intellectual Property Brief (Dec. 29, 2014).