Greg Broiles wrote:
As reported by Michael Froomkin's correspondent, the Uniform Trade Secrets Act <http://www.execpc.com/~mhallign/usta.html> (enacted with local modifications in, as I understand it, 40 states, among them California) says that third parties may be held liable for misappropriation of a trade secret where the third party knows or has reason to know that they are doing so.
For example, California Civil Code section 3426.3 says:
3426.3.(a) A complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss. (b) If neither damages nor unjust enrichment caused by misappropriation are provable, the court may order payment of a reasonable royalty for no longer than the period of time the use could have been prohibited. (c) If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subdivision (a) or (b).
And misappropriation is defined in California Civil Code section 3426(1)(b) as:
(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
My other concern about moderator liability for approving/distributing trade secret material is in the criminal context. For example, the Economic Espionage Act of 1996 (HR 3723, now found at 18 USC 1831 et seq, <ftp://ftp.loc.gov/pub/thomas/c104/h3723.enr.txt> ) says that some trade secret violations are now a federal crime; and California Penal Code section 499c(b) also criminalizes some wrongful acts relating to trade secrets. Specifically, I think it's feasible to find aiding & abetting (and, more remotely, conspiracy) liability where a moderator knowingly and substantially contributes to public disclosure of a trade secret.
It seems to me that there's a murky middle period, where the trade secret is known to some wrong people, but is still substantially a secret, where third party liability is present. But once a wide distribution of the secret is made, I don't think it's meaningful to talk about further distribution as misappropriation. If there's no common-sense "it's no longer a secret" safety valve, trade secret would provide time-unlimited protection to publically available information, which I think would be preempted by (or frustrate the purpose of) Congress' limited grants of protection to information via patent and copyright. But this is only my conjecture about how things ought to work, given the responsibilities created for third parties by statutes like the UTSA; I don't know of cases on this issue and given my work/bar review schedule, won't have time to find them any time soon.
Also, as I mentioned in my previous message, I think there are good arguments that neither of the prominent trade secret disclosures I'm familiar with that have occurred (in part) via the list would create moderator liability. I'm mentioning moderator liability (and writing what's turning into a long message about it) not because I think it's an especially big danger but because I think it's an interesting public policy issue.
I don't have the teeniest clue how other nations' laws might treat third parties who assist or enable the wide dissemination of trade secret materials. Perhaps other list members can offer a local perspective.
-- Greg Broiles gbroiles@c2.net 510-986-8779 voice 510-986-8777 fax
So YOU think the moderator of the list should be held responsible? You say it is an interesting public policy issue....mmm..I guess for bootlickers who want to control the flow of data freely in the public forum......Nay I say...it is ridiculous to even think that. The moderator is providing a platform for other people to converse. And since this is an UNMODERATED group...mmm??...Besides....I guess your not very familiar or even sympathetic to the hacker's creedo are you? Knowledge is power....and if only the few have power...well..no checks and balances... If a company is worried about thier special little secret...well..it's there damned responsiblity to make sure it stays a secret...and well if it gets out...ie...they were stupid enough not to have the appropriate security measures...well..I guess it would no longer be a secret then, correct? Man..can't anyone take responsibility for thier own actions anymore?? What the fuck is wrong with this country??....Land of the free??...YEAH RIGHT!!???? BAH HUMBUG.