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RE: [dvd-discuss] FW: SJ MercuryNews, Ruling a blow for DVD indus try (11-02-2001) (Emailing: dvdsuit02.htm)

This is exactly right.

For the purposes of the appeal, the court *assumed* for the argument that the
DVDCCA would prevail on showing that Johansen misappropriated the trade secrets
(I happen to think they'll lose big on this). They said, even if Johansen
misappropriated DVDCCA trade secrets, state law cannot forbid speech by those
who have no duty to keep the secret.

If A makes a contract with B not to disclose trade secret T, and B violates the
contract and as a result C unknowingly learns T, then if C posts T to the
internet, A has no recourse against C. Perhaps A can sue B for the damages
caused, but as Stevens said in Bartnicki, the primary way to stop wrongful
disclosures muct be to penalize the person who did it.

Trade Secrets and patents are mutally exclusive. Patents are a protection
against the world, but require full disclosure. Trade Secrets are a protection
only against people who assent or who break the law to spy, and are destroyed
by disclosure. The DVDCCA wants a patent-like protection without meeting
patent-like requirements.

A very interest alternative way to justify this Courts opinion is to say that
the patent power preempts a trade secret protection "against the world". Very
strong support for this would be provided by KEWANEE OIL CO. v. BICRON CORP.,
416 U.S. 470 (1974), which addresses this point directly, saying that trade
secret laws are not preempted precisely because they have this limitation built


This line was also explored in BONITO BOATS, INC. v. THUNDER CRAFT BOATS, INC.,
489 U.S. 141 (1989) 

--- Richard Hartman <hartman@onetouch.com> wrote:
> The thing that this murky news article neglects to mention is that trade
> secret protection is only from those who have the obligation to keep
> the secret but do not.  And perhaps those who can be shown to have
> directly stolen the secret from the owners (i.e. you break in to the vault
> in Atlanta to aquire the Coca Cola recipie, but you leave your fingerprints
> behind).
> Independant discovery of a process that somebody else considers to
> be "their secret" is _not_ legally prohibited.

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