Madison, Michael J. --- "Open Secrets" [2011] ELECD 551; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 10

Section Title: Open Secrets

Author(s): Madison, Michael J.

Number of pages: 24

Extract:

10 Open secrets
Michael J. Madison*


I. INTRODUCTION
Both inside and outside the thing that the law calls a `trade secret' lie
domains of open information exchange. Trade secrecy demands a cor-
responding openness precisely by virtue of the law's requirement that the
information may be protected as a trade secret provided that its secret
status supplies its owner with economic value or a commercial advantage.1
That advantage necessarily comes via exchange with others. Perhaps the
most famous and commercially successful trade secret in history, Coca-
Cola's formula for its classic soft drink, is the foundation of millions of
dollars in sales to consumers worldwide. The commercial software indus-
try likewise distributes products containing its trade secrets to millions of
end-users annually.
This Janus-like or two-faced character of trade secrets has long been an
implicit feature of accounts of the law of trade secrets. The open character
of trade secrets appears in accounts that analyse the doctrine in relational
terms, when those accounts note that trade secrecy's scope is usually
limited to certain commercial or technical contexts. Information may be
secret for purposes of interactions that are subject to special duties, such as
those between employers and employees, and between business partners,
but that same information may be accessible for other purposes, such as
relations between a supplier and consumers, and between competitors.
The latter groups ordinarily are entitled to access the secret, at least so
long as they use `legitimate' means.
Openness ...