Pasquale, Frank --- "The Troubling Consequences of Trade Secret Protection of Search Engine Rankings" [2011] ELECD 556; 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 15

Section Title: The Troubling Consequences of Trade Secret Protection of Search Engine Rankings

Author(s): Pasquale, Frank

Number of pages: 25

Extract:

15 The troubling consequences of trade
secret protection of search engine
rankings
Frank Pasquale*


Search is the watchword of the information age. Among the many new infor-
mation technologies that are reshaping work and daily life, perhaps none are
more empowering than the new technologies of search . . . Whereas the steam
engine, the electrical turbine, the internal combustion engine, and the jet
engine propelled the industrial economy, search engines power the information
economy.1



INTRODUCTION

Trade secrecy law has focused on promoting `commercial ethics' in
markets. One of its central goals is to avoid wasteful or unfair competi-
tion. For example, rather than triple-locking every vault or biometrically
assessing the credentials of all encountered, a trade secret owner can
bind employees, customers and others not to misappropriate or disclose
valuable processes and products. A legal entitlement to trade secrecy cuts
down the costs that would be incurred by zealous pursuit of `real secrecy'.
Yet trade secrecy creates other costs. Some scholars have commented on
secrecy as an impediment to incremental innovation, and have promoted
patent rights as a better alternative. A smaller group has addressed the
negative consequences of trade secrecy for society; for example, a firm
might prevent health and safety regulators from adequately investigating



* Schering-Plough Professor in Health Care Regulation and Enforcement,
Seton Hall Law School; Visiting Fellow, Princeton University's Center for
Information Technology Policy. I am very grateful to participants at workshops
at Fordham Law School, Loyola Law School and the Annenberg School of
Communications ...