In August 2014, thirty-one law professors signed a letter in opposition to proposed federal legislation to create a civil cause of action for trade secret misappropriation. We write to express continued concerns about the current version of this legislation, the Defend Trade Secrets Act of 2015 (“DTSA”), S. 1890 and H.R. 3326. While we agree that effective legal protection for U.S. businesses’ legitimate trade secrets is important to American innovation, we believe that the DTSA—which would represent the most significant expansion of federal law in intellectual property since the Lanham Act in 1946—will not solve the problems identified by its sponsors. Instead of addressing cyberespionage head-on, passage of the DTSA is likely to create new problems that could adversely impact domestic innovation, increase the duration and cost of trade secret litigation, and ultimately negatively affect economic growth. Therefore, the undersigned call on Congress to reject the DTSA.
[with Sharon K. Sandeen from the Hamline University School of Law] We write to express our continued concerns about the Defend Trade Secrets Act (“DTSA”) and our willingness to assist you in determining how best to improve enforcement of legitimate trade secret rights. In August 2014, 31 academics signed a letter raising many concerns with similar legislation then pending in the House and Senate. We attach a copy of that letter, which can be found here (the “August 2014 letter”).
Congress appears poised to pass Trade Promotion Authority, otherwise known as ‘fast track,’ for the Trans Pacific Partnership Agreement (TPP). If this happens, it will likely close the door to any possibility of meaningful public input about TPP’s scope and contours. That’s a major problem, as this “21st century trade agreement” encompassing around 800 million people in the United States and eleven other countries, will impact areas ranging from access to medicine (who gets it) to digital privacy rights (who has them). But, unless you are a United States Trade Representative (USTR) “cleared advisor” (which almost always means that you represent an industry, like entertainment or pharmaceuticals), or, under certain limited circumstances, an elected official, your chief source of TPP information is WikiLeaks. In other words, if Julian Assange gets his hands on a draft TPP text, you might see it, once he decides that it should be made public. Of course, you’ll have to hope that the copy that you see is current and accurate.
The New York Times reported this afternoon that a Congressional agreement has been reached on so-called “fast track” authority for the Trans Pacific Partnership Agreement (TPP). This international agreement, having been negotiated under extreme secrecy by 12 countries including the United States, Australia, Canada, Japan, Malaysia and Singapore, is supposed to be an “ambitious, next-generation, Asia-Pacific trade agreement that reflects U.S. economic priorities and values.” Indeed, if it comes into effect, it will be the largest such agreement in history, covering some 800 million people. Unfortunately, its chances of meeting that laudable goal have been severely diminished by the aforementioned secrecy.
As you may have noticed last night in the SOTU, trade secrecy (and trade secret law reform) remains on the national radar screen. Thus, I’m pleased to report that Sharon Sandeen and I have co-authored Here Come the Trade Secret Trolls, published today in the Washington & Lee Law Review Online: http://lawreview.journals.wlu.io/here-come-the-trade-secret-trolls/.
The abstract is below:
Trade secrecy, arguably the most active but least understood and studied of intellectual property’s doctrines, is on the rise. Over the past two years, there has been increased legislative activity in this space — the most since the revision of the Uniform Trade Secrets Act in 1985. Most prominently, it has been the subject of an alarming report out of the White House documenting increasing risk to US corporations from state-sponsored cyberespionage. Based upon those significant but hard to quantify harms, bills have been introduce in Congress over the past few years designed to amplify the options for aggrieved companies. The perceived inadequacies in the current law have spurred the most recent legislation, known as the Defend Trade Secrets Act and Trade Secrets Protection Act.
Sharon Sandeen at Hamline Law and I have authored a letter dated August 26, 2014 and signed by 31 United States legal academics to the Congressional sponsors of the “Defend Trade Secrets Act of 2014” (“DTSA”) and the “Trade Secrets Protection Act of 2014” (“TSPA”) (collectively, “the Acts.”)
Congress has been weighing how to respond to increased cyber-espionage. The Acts are the latest bills to create a private cause of action under the Economic Espionage Act (EEA). A copy of the bills can be found at https://beta.congress.gov/113/bills/s2267/BILLS-113s2267is.pdf (DTSA) and http://holding.house.gov/sites/holding.house.gov/files/documents/TSPA%20-%20HOLDNC_018_xml.pdf (TSPA).
What’s your definition of the “public interest” when it comes to law and lawmaking? Is it a unitary concept, where we consider the good of society as a whole? If so, you might think that the public’s interest is in a “public interest” which encompasses “cross-cutting issues” that transcend narrow considerations and allows debate about and among competing interests. On the other hand, do you view the “public interest” more narrowly? If so, you might view the public’s interest as served by placing “public interest” in a box separate from other interests, like environmental, labor or intellectual property policy. From that perspective, the “public interest” is just another consideration in the panoply of considerations that make up society.
A few days ago, the hydraulic fracturing (“fracking”) industry was able to successfully lobby (via Halliburton) to weaken North Carolina’s proposed fracking information access rules. The result could be that trade secrets – that information that is commercially valuable because it is not publicly known– will be difficult to access not only for the public, but even for the North Carolina Mining and Energy Commission, charged with writing and enforcing the regulations for fracking. And at least to one MEC commissioner, that’s apparently just fine. According to a NC Mining and Energy Commission (MEC) member (who was formerly with Halliburton): “The secrecy thing is to me a joke. The secret, such as it is, is only of value to the competitor.”
“If you want to kill a trade agreement, or any effort to make new law or policy, keep it secret for an excessive amount of time and leave the timing of its eventual release to the law or policy’s skeptics and enemies.” That should be the lesson of today’s leak of the Intellectual Property (IP) Chapter of the Trans Pacific Partnership Agreement (TPP) by Julian Assange’s WikiLeaks. Indeed, as Assange himself said upon announcing the leak, “I think that this release is going to pretty much kill it.” Although the substance itself will garner much opposition (like provisions regarding access to medicine and copyright duration), the surprising fact is that Assange has received much aid in reaching that conclusion from the TPP negotiators themselves because of the hyper-secrecy that has characterized the negotiations.
You may recall that I circulated a letter for signature earlier this year in support of Alaska’s proposed fracking regulations, specifically the requirement that chemical industry trade secrets be shared with the Alaska Oil & Gas Conservation Commission (AOGCC). After a summer of regulatory advocacy, the AOGCC opened a second round of comments.
Please find a short cover letter that restates the position that these trade secrets should be shared with the AOGCC and attaches the earlier letter. If you’d like to sign, please send me your name and affiliation by noon (eastern) on Monday, October 14.
We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in opposition to the proposed Bureau of Land Management (“BLM”) regulations of hydraulic fracturing (also known as “fracking”) contained in the Federal Register dated May 24, 2013, particularly proposed regulations 3 CFR 3162.3–3(j)(1) through (4) (the “Regulations”). As we understand them, in sum, the Regulations would allow entities engaged in hydraulic fracturing to withhold purported chemical information trade secrets from the BLM, and by extension, the public.