What\u27s It Worth to Keep a Secret?

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation. Another reason is that criminal trade secret law is relatively young, and the usual corrective approaches to valuation in civil trade secrecy are not synonymous with the greater distributive concerns of criminal law. To begin to fill this gap, we examine over a decade of trade secret protection and valuation under the U.S. Economic Espionage Act of 1996. From original data on EEA prosecutions, we show that trade secret valuations are lognormally distributed as predicted by Gibrat’s Law, with valuations typically low on the order of $5 million but reaching as high as$250 million. There is no notable difference among estimates from various valuation methods, but a difference between high and low estimates on one hand and the sentencing estimates on the other. These findings suggest that the EEA has not been used to its full capacity, a conclusion buttressed by recent Congressional actions to strengthen the EEA

What's it worth to keep a secret?

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation. Another reason is that criminal trade secret law is relatively young, and the usual corrective approaches to valuation in civil trade secrecy are not synonymous with the greater distributive concerns of criminal law. To begin to fill this gap, we examine over a decade of trade secret protection and valuation under the U.S. Economic Espionage Act of 1996. From original data on EEA prosecutions, we show that trade secret valuations are lognormally distributed as predicted by Gibrat’s Law, with valuations typically low on the order of $5 million but reaching as high as$250 million. There is no notable difference among estimates from various valuation methods, but a difference between high and low estimates on one hand and the sentencing estimates on the other. These findings suggest that the EEA has not been used to its full capacity, a conclusion buttressed by recent Congressional actions to strengthen the EEA

2010-2011 Fordham Law School Faculty Bibliography

https://ir.lawnet.fordham.edu/fac_bib/1014/thumbnail.jp

Algorithms that Remember: Model Inversion Attacks and Data Protection Law

Many individuals are concerned about the governance of machine learning systems and the prevention of algorithmic harms. The EU's recent General Data Protection Regulation (GDPR) has been seen as a core tool for achieving better governance of this area. While the GDPR does apply to the use of models in some limited situations, most of its provisions relate to the governance of personal data, while models have traditionally been seen as intellectual property. We present recent work from the information security literature around `model inversion' and `membership inference' attacks, which indicate that the process of turning training data into machine learned systems is not one-way, and demonstrate how this could lead some models to be legally classified as personal data. Taking this as a probing experiment, we explore the different rights and obligations this would trigger and their utility, and posit future directions for algorithmic governance and regulation.Comment: 15 pages, 1 figur

Intellectual Property: The Practical and Legal Fundamentals

Patents, copyrights, trademarks and related interests are known as intellectual property (IP). It has not been long since patents especially were regarded in U.S. courts, and the Supreme Court in particular, as tools of monopolists, and their owners often fared poorly. However, people have come increasingly to view privately funded innovation as critical to national economic well-being and to agree that such innovation cannot occur unless companies that succeed in the marketplace can recoup their research, development and marketing costs. That is a major function of IP, and, particularly within the past dozen years, IP has been seen, both here and abroad, as playing a key role in developing technologies for the next century

Trade Secret Litigation and Free Speech: Is it Time to Restrain the Plaintiffs?

Trade secret misappropriation litigation is often criticized for its negative effects on competition and speech. In particular, some accuse plaintiff trade secret owners of filing complaints for the purpose of running competitors out of business, or restraining individuals from discussing matters which are unfavorable. This Article enters the discussion to critically assess whether there is reason to consider restricting these actions. It concludes that trade secret litigation on the whole does not inappropriately impinge on speech rights. Even if certain cases come closer to offending defendants’ free speech rights, these occasions and the concerns they raise are not unique to trade secret law. Instead, they stem from the broader issue of litigation misuse in civil and intellectual property cases. Indeed, there are particular reasons not to be overly concerned about trade secret actions because existing litigation safeguards, when properly applied, minimize the risk of free speech incursions