New Paper: “The Defend Trade Secrets Act Isn’t an ‘Intellectual Property’ Law”

13 03 2017

Congress worked on the Defend Trade Secrets Act (DTSA) for years, yet the final product has a number of rough edges and curiosities. One example is the following sentence:

This section and the amendments made by this section shall not be construed to be a law pertaining to intellectual property for purposes of any other Act of Congress

I know regular blog readers just spit out their coffee and are shouting “WTF?!” Of course trade secrets are an intellectual property; so of course the DTSA is an intellectual property law. How could Congress say otherwise?

My new article, cleverly named “The Defend Trade Secrets Act Isn’t an ‘Intellectual Property’ Law,” answers that question in a prolix manner befitting a law professor.

The short story is that the sentence preserves the Perfect 10 v. ccBill “salient” in Section 230 jurisprudence, which says that Section 230 can apply to state IP laws–including trade secrets. ccBill is only the law in the 9th Circuit, but nevertheless it’s become a crucial part of Section 230 jurisprudence. The DTSA makes trade secrets a federal claim, which would have functionally eliminated the ccBill salient as applied in the trade secret realm. The DTSA’s curious declaration preserves that salient.

It also does a lot more.


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