Document Type

Article

Publication Date

2007

Abstract

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using it. Accordingly, trade-secret owners bear the burden of being vigilant and acting quickly if there is to be any chance of preserving the trade-secret status of the information. The current requirement of a court order for a takedown not only is costly but also is too slow for trade-secret owners because of the speed with which users distribute information over the Internet. Obtaining a temporary order from a court would likely take no fewer than several days.

Given that secrecy is vital to preserving trade-secret status, time is of the essence to trade-secret owners, and each hour that a trade secret is available on the Internet is an hour too long. In order to address this time-lapse problem, this Article explores a proposal for trade-secret takedown legislation similar to that which provides for the immediate removal of suspected copyright violations under the DMCA. A takedown provision for trade secrets would provide self-regulation and privatized enforcement in an effort to permit trade-secret owners to save their trade secrets from near-certain death on the Internet. A takedown provision would offer an expedited process for disabling access to trade-secret information in the interim period between discovery of the misappropriated material and issuance of a ruling by a court.

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