Subject:
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Re: Pruning not good for the trees
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Newsgroups:
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lugnet.admin.general
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Date:
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Tue, 8 Aug 2000 15:56:03 GMT
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Viewed:
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289 times
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In lugnet.admin.general, Matthew Miller writes:
> Larry Pieniazek <lpieniazek@mercator.com> wrote:
> > To the other point that the Target info was public domain, being made by • some.
> > I disagree. Target is lax, Lax, LAX in their procedures, but I can't imagine
> > that they actually WANT this info leaked, er that is, systematically • disclosed
>
> I don't think that matters. Once information is public, any trade secret
> protection ends.
Well, not exactly. When a company is seeking damages in a suit due to losses,
the level of protection that the information is given is a material factor,
but not the entiriety. That is, were TLC to sue Target, Target could mount a
defense saying that TLC never made it clear that this was sensitive info. On
the other hand, if TLC DID make it clear, Target would then be at fault. If
Jorge were named as a co defendant (likely) then *his* defense would be that
Target policies didn't clearly spell out that info in the handheld wasn't to
be disclosed.
What that means is that while it's true that the info is (or may be) no longer
secret, there's lots of torts to be had.
SINCE Lugnet does exercise editorial control, it has to act swiftly to excise
this info once discovered, or else its liability is drastically increased.
Further, while it's true that the info in this instance is no longer secret,
there have been cases in the past of companies trying to put the genie back in
the bottle (and in some cases, succeeding) by finding every copy and returning
it to secret.
Specifically there was an example of someone publishing a close approximation
of the Coke secret formula that was obtained illegally from Coke (who can
easily show extraordinary measures to keep it secret, obviating THAT defense).
Coke vigorously responded and forced destruction of a great deal of material,
at the expense of the publishers who unwittingly disseminated it.
I ain't a lawyer either but I have done a fair bit of research in this area
and I draw heavily from material disseminated to me while at IBM about how to
protect intellectual property. I have two IBM invention disclosures that were
considered significant enough to protect via secrecy but not significant
enough to patent(1), so dug into this matter pretty extensively because I
wanted to understand how I was constrained in what I could do or say.
> And if Lego wanted trade secret protection in the first
> place, they should have made sure that Target made its employees know that
> they have a duty to not disclose the information. In order for something to
> be a trade secret at all, the company needs to affirmatively act to keep the
> information secret. Telling people not to talk about it after it's already
> out in the public is too late.
This part, as I allude to above in respect to protection, I agree with. But
TLC doesn't have to be specific in saying "don't let employees put this on
handhelds and give it to customers" it's sufficient for TLC to say "we
consider advance pricing and range info to be sensitive, just as any other
manufacturer does, and expect you, Target, to take reasonable and customary
precautions to prevent disclosure". If they said that, Target is now holding
the bag, not TLC, because TLC (using my words) "made it clear" that it's
secret. And I can't imagine they *didn't* say those words or similar. They're
in the boilerplate of every contract you sign in the business world, just
about. Read your employment agreement, for example.
Again, the fact that a secret gets published somewhere does not in and of
itself put that information into the public domain. Effectively, maybe, but
not legally.
I'm not totally disagreeing with you, Matt, just pointing out that it's not
quite as cut and dried as you're saying. And the more I think about it, the
more I think Todd has no practical choice but to quash anything questionable,
once he goes down the editorial control road (which he has, whether he admits
it or not, by enforcing the T&C's, which we all want him to do, don't we!!!!).
Choice, yes, practical choice, no. One big hairy lawsuit and game over for
LUGNET. Even a frosting in the Lugnet TLC relationship, while survivable, is
not a good outcome. IMHO.
1 - IBM invents a lot of stuff. For every patent issued, something like 5-10
publish-nondiscloses will be issued for the less commercially lucrative
things. It's kind of tricky, you want to get them clearly into prior art in
case someone patents them but not make them known to anyone outside your firm.
++Lar
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Message has 2 Replies:
 | | Re: Pruning not good for the trees
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| (...) And here is where the problem with not 'getting' the internet comes in. Plus, the information is now in quite a few people's brains (not mine -- memory not good enough *grin*). Do they intend to wipe those clean? (...) Put another way -- (...) (24 years ago, 8-Aug-00, to lugnet.admin.general)
| | | Re: Pruning not good for the trees
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| (...) I object to that statement -- it's wording. My opinion is that LUGNET does not exercise editorial control but will, when required, forcibly remove information from its server when it has been notified that the information must be removed on (...) (24 years ago, 8-Aug-00, to lugnet.admin.general)
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Message is in Reply To:
| | Re: Pruning not good for the trees
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| (...) I don't think that matters. Once information is public, any trade secret protection ends. And if Lego wanted trade secret protection in the first place, they should have made sure that Target made its employees know that they have a duty to (...) (24 years ago, 8-Aug-00, to lugnet.admin.general)
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