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.


  1. One possible problem with this approach,let's suppose following situation:
    1)trade secret is published this way
    2)site is indexed by $insert_your_favorite_search_engine
    (and partial copy stored,like Google's 'show cached copy..')
    3)someone finds this site via search engine,DONT go to original side(which is unavailable for some reason at this moment), looks at partial cached copy (which doesn't necessary event contains notification that were are some EULA at all)
    4)information is used in way contradicting EULA. Who will be liable?Person who tried to visit site in 3)?But she don't know about EULA at all(and could not know) AND never actually visited site. Or this will become another issue like 'we published EULA,don't make any techinical measures and will sue anybody who we think violate it'.

    Another possible variation on same them(this in fact based on recent AdBlock issue,which has long history) :

    Let's suppose we have site A, which EULA's forbid 'changing visual appearance of site', site A uses some scripts and images from site B(and site B is ok with such usage).
    If someone's software forbids all attempts to load data from site B?
    - Will that someone be in violation?
    - What changes if browser of that someone simple doesn't support technologies used by site B and cannot load or render site B content framed into site A due to some legitimate reasons
    - What techologies are supported but user choose to specifically allow them only on limited number of sites?

  2. Vikarti Anatra: See my discussion about web terms being effective against a person even if the person does not specifically view the terms.