Trade Secret Web Terms

Legal Protection for Intellectual Property on the Internet

IP Enforcement by Contract

Trade secret law says that if a business takes reasonable steps to keep a valuable idea a secret, then it can prevent someone (like a competitor) who misappropriates the idea from using it. And conventional thinking says that if the idea is published on the web without password protection, then the idea is public and not secret.

But conventional thinking lost in Silicon Image v. Analogix Semiconductor Case 3:07-cv-00635-JCS, Federal District Court, Northern District of California. The court ruled that a secret posted in an obscure way (in Chinese, where it was unclear that all of the components of the secret had been posted) on an obscure web page is still a secret.

Given that principle, here’s a practical, EULA (end user license agreement) idea. The owner of a secret might post it on a web site, so that, for example, prospective customers could see it. But the owner might publish terms that state:

* the secret is confidential

* anyone accessing the secret agrees and consents it is a secret that can be used only in accordance with the terms (i.e., to advance a customer relationship but not a competitor relationship)

* anyone accessing the web site agrees not to do so for the purpose of accessing or misappropriating the secret in violation of the terms

By publishing terms this way, the owner will assert it is taking reasonable steps to protect the idea's secrecy.

When you encounter important legal terms on the web, how should you preserve evidence of them in case there is a question in the future? As I explain in another article, one idea is to authenticate a copy of the terms with a voice signature.