[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Re: [dvd-discuss] CA Supreme Court hears Pavlovich Jurisdiction Challenge in DVDCCA case

On 8 Sep 2002 at 12:41, James S. Tyre wrote:

Date sent:      	Sun, 08 Sep 2002 12:41:08 -0700
To:             	<dvd-discuss@eon.law.harvard.edu>
From:           	"James S. Tyre" <jstyre@jstyre.com>
Subject:        	Re: [dvd-discuss] CA Supreme Court hears Pavlovich 
 	Jurisdiction Challenge in DVDCCA case
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Part correct, part not.
> 1.  Trade secrecy law is primarily a state matter, not a federal matter.
> 2.  Like most states, CA has adopted the Uniform Trade Secrets Act, with 
> some modifications.  (Uniform Acts are proposed by a national body, the 
> idea being to bring consistency to the law of the various states.  Each 
> state is free to adopt a uniform act in whole, in part, or not at all, as 
> the state legislature may see fit.)
> 3.  At least to my knowledge, the CA adoption of the UTSA is not more 
> protective of trade secrets than that of most other states.  As 
> specifically applicable here, the CA version of the UTSA - Cal. Civil Code
> sections 3426 et seq. - specifically provides that there is liability only if a
> trade secret is acquired through an improper means, and that reverse engineering
> is not an improper means:
> 3426.1.  As used in this title, unless the context requires
> otherwise:
>     (a) "Improper means" includes theft, bribery, misrepresentation,
> breach or inducement of a breach of a duty to maintain secrecy, or
> espionage through electronic or other means.  Reverse engineering or
> independent derivation alone shall not be considered improper means.

Presumably (b) is where they are trying to "hang" Matt on...

>     (b) "Misappropriation" means:
>     (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

He' supposed to know that it was acquired by improper means finding it on the 

>     (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

It's not clear that this has happened either but the courts seem to be taking 
this as a given rather than something that has to be proven.

What constitutes improper means? Clearly espionage, bribery. What constitutes 

>     (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

I'm having a hard time figuring out how any of this applies to Matt's case. 

>     (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.

"had reason to know"....so it's not if you know or don't know it's what you 
might believe? Or what someone else might believe and you don't? OR the 
carelessness of the holder? If you know enough to believe that you know a trade 
secret, then it's not being protected very well and forfeits trade secret 
protection. This is too broad.

> At 03:37 PM 9/8/2002 -0400, Joshua Stratton wrote:
> >Indeed they have. Partially this is because IIRC Congress hasn't enacted
> >any legislation. Trade secrets are pretty much the domain of the states.
> >California's t.s. laws are broader than those of a lot of other states
> >though, again IIRC.
> >
> >
> >On Sun, 8 Sep 2002, Jeremy Erwin wrote:
> > > Not to play devil's advocate here, but it is possible that California
> > > has enacted much broader protections for trade secrets than the U.S
> > > Congress.
> --------------------------------------------------------------------
> James S. Tyre                               mailto:jstyre@jstyre.com
> Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
> 10736 Jefferson Blvd., #512               Culver City, CA 90230-4969
> Co-founder, The Censorware Project             http://censorware.net