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Comment by emilfihlman | Hacker News Reader

Could anyone explain why trade secrets are something you can sue over if no NDAs or similar have been signed?

Why do you say no NDAs were signed? Levandowski signed a NDA. Here's a quote from one of Waymo's filings.

> Waymo also requires all employees, contractors, consultants, vendors, and manufacturers to sign confidentiality agreements before any confidential or proprietary trade secret information is disclosed to them.

Edit: I screwed up the original quotation and had one that said he signed a NDA with Uber instead of Waymo. I've replaced it with a similar quote (also from a Waymo filing) saying he signed a NDA with Waymo...

It's technically a type of intellectual property, like a patent. If no agreements are in place, it's still infringement.

Is that really true? Is there something I can read for a better understanding?

""" ...a trade secret is information that:

* Is not generally known to the public;

* Confers some sort of economic benefit on its holder (where this benefit must derive specifically from its not being publicly known, not just from the value of the information itself);

* Is the subject of reasonable efforts to maintain its secrecy. """

https://en.wikipedia.org/wiki/Trade_secret

None of those criteria requires a contract or even an explicit label, but some sort of agreement is certainly easier to defend in court, if the need arises. Likewise, trademarks don't technically need to be registered or even claimed, but they do need to be enforced. If you open source your trade secrets or let stores sell generic "Cheerios", then you have a weak claim if you ever need to bring someone to court.

Gratuitous: I am not a lawyer, this is not legal advice, etc.

Interesting... superficially it looks like patent protection without having to disclose the patent and have it eventually expire.

Is that an accurate statement?

You can independently reinvent it, you just can't steal it.

What happens if for example, unsolicited someone from the competition tells me the secret?

The feds adopted a Trade Secrets Act in 2016. [0] But many states have had versions of the Uniform Trade Secrets Act, starting in 1979.[1]

[0] https://en.wikipedia.org/wiki/Defend_Trade_Secrets_Act

[1] https://en.wikipedia.org/wiki/Uniform_Trade_Secrets_Act

Does that mean someone can't independently come up with the formula for Coke (Pepsi or any knock off) because it's their intellectual property? [Or KFC's 13 spices]

Or is Pepsi (and other knock offs) sufficiently different? Or something else working here.

I'm pretty sure the fundamental difference between trade secrets and a patent is that if someone else comes up with it independently, or if you tell someone what it is, a patent protects you and a trade secret doesn't.

OP [lmkg] says it would still be infringement, if there is no agreement [x-licensing]. Not sure if that is true or not though.

They are probably assuming that you were given the information with the knowledge it was a trade secret even if you didn't sign anything specific about keeping it secret, not that you invented it separately.

That was the missing piece. Thanks.

IANAL, but for something to be a trade secret, it should be secret, economically useful and there should be some reasonable precautions preventing its disclosure.

No. Inventing the same thing independently does not violate trade secret. Reverse engineering is lawful methods to discover trade secret. Industrial espionage is unlawful.

Unlike registered intellectual property, trade secrets can be kept indefinitely.

there's also of course the possibility that uber violated the CFAA if someone exfiltrated data from waymo, though the distinctions re: access without autorization and access that exceeds authorization are quite nuanced.

if "uber-spy" had authorized access to many secrets, intended all along to steal it and bring it to uber, dumped a ton of data, then left and carried out their plans to give the data to uber, case law says "uber-spy" didn't violate any clauses of the CFAA, whether they signed an NDA or not ("contract based restrictions" are rarely if ever considered unauthorized access per the CFAA). however, there are many gotchas that can hook that data into access in excess of authorization (exfiltrating it on company property, even printed pages for example).

once you have a nexus to get a CFAA violation in, you can start bringing in intent and monetary gain and such and potentially even get into easy to prove strict liability offenses.

given the description of their anonymous server, secret phone team, there's a pretty good chance that stuff alone will open them up to CFAA based prosecution, which could go very badly. who knows though.

if you're interested in this sort of stuff, which may be tangential to uber/waymo (i'm not sure / don't care) , orin kerr is the person to read.

Trade secrets are intellectual property which is ... property. So stealing trade secrets is stealing property which is theft.

You can develop what is the equivalent of a trade secret. That is the risk and you have to make efforts to keep the secret a secret. But if an employee copies your trade secret that’s theft.

No, copyright infringement isn't theft even if it has been characterized as "stealing intellectual property". Intellectual property is a broad term without any real meaning.

Copyrights don't have to be registered to have effect. Patents do. Trademarks can be either. If you don't defend a trademark, you lose it. If you don't defend against copyright or patent infringement, you can just wait. Patents last for 20 years. Copyright lasts for life of the author + 70 years, or 95 years (publication date)/120 years (creation date) for corporations. Registered trademarks are renewed every 10 years; potentially indefinitely (?)

You can't make any assumptions about trade secret law based on other "types" of "intellectual property" without actually reading and knowing the laws around trade secrets.

IANAL but you can't just wait indefinitely if it's viewed as letting evidence deteriorate or setting a kind of trap for the infringer.

https://en.wikipedia.org/wiki/Laches_(equity)

I am also not a lawyer.

There is a distinction between wait indefinitely between an individual infringement occurring and suing for that incident versus picking and choosing which infringers to go after. The latter is not an option for trademarks.

Also, that appears to be an equitable defense. If successful, it would prevent an injunction to remedy the infringement but the holder of the rights in question could still pursue monetary damages. Again, I'm not a lawyer so I could be way off base here.

What do copyright, trademark and patents have to do with trade secrets? You accuse the op about not knowing anything about trade secrets then you proceed to talk about things that aren't related to trade secrets. Trade secrets aren't protected by copyright, as something needs to be published, therefore no longer a secret, to be copyrighted. Trademarks, well they just aren't a secret. Patents are the opposite of a trade secret. With a parent you publish your secret for the guarantee of a monopoly on it for a certain period of time. A trade secret can be kept forever if you keep it a secret. Trade secrets do have protections, but you have to actively maintain the secret.

Publication isn't needed for copyright protection in the modern era, essentially all countries including the United States signed Berne which says you have copyright in any work as soon as it's created, no need to publish, register, file, or whatever.

That's exactly my point. The term intellectual property groups all of these things together as if the laws surrounding them are in any way similar or related.

Yes, trade secrets are generally things which are patentable which the inventor chooses to keep secret for one reason or another - generally for some sort of competitive advantage.

Could anyone explain why trade secrets are something you can sue over if no NDAs or similar have been signed?

A. (the sarcastic answer)

The USPTO explains the reasoning here:

https://www.uspto.gov/patents-getting-started/international-...

As that page makes clear, it's now a federal offense to misappropriate trade secrets because:

"As a member of the World Trade Organization (WTO) and a party to the Agreement on Trade Related Aspects of Intellectual-Property Rights (TRIPS), the United States is obligated to provide trade secret protection. Article 39 paragraph 2 requires member nations to provide a means for protecting information that is secret, commercially valuable because it is secret, and subject to reasonable steps to keep it secret. The Defend Trade Secrets Act of 2016 created federal civil cause of action, strengthening U.S. trade secret protection, with a choice for the parties between localized disputes under state laws or disputes under federal law, heard in federal courts. While state laws differ, there is similarity among the laws because almost all states have adopted some form of the Uniform Trade Secrets Act. "

If for some reason you need a deeper explanation (although I'm already getting a bit suspicious as to what legitimate reason you might or might not have), that page links to a helpful Youtube video:

https://www.youtube.com/watch?v=1dXA5A4l0Rg

While unfortunate that the USPTO has no way to distribute video information without relying on its industry partners to help get the message out[1], the video clarifies that "The failure to identify and protect trade secrets can result in a loss of competitive advantage, loss of core business technologies, and reduced profitability. In many countries the importance of trade secrets is reflected in laws and regulations that protect against trade secret theft because of the impact it can have on the economic vitality of businesses."

Egad, the specter of "reduced profitability" and the loss of "economic vitality"! Underlying this important message are a series of cartoons subconsciously illustrating the principle that without federal protection of trade secrets, the recipe for the "World's Best Cookie's" would quickly be stolen by foreigners with funny looking facial hair, and then we would no longer have cookies.

Any other questions? </sarcasm>

B. (the non-sarcastic answer)

Because businesses with lots of money gave some of that money to politicians to create laws allowing them to use the muscle of the federal government to preserve the competitive advantages they already have. Trade secrets are to patents roughly as the DMCA is to copyright: they add a layer of federal felony to what would otherwise be a civil dispute.

[1] Even the interstitial makes me gag: "You are leaving USPTO.gov. We provide this link to an outside website because it has information that may be of interest to users. The USPTO does not necessarily endorse the views or facts presented on this site. The USPTO does not endorse any commercial products that may be advertised or available on this site." They make the video, post it on an external website, and then say that are linking to an external website because it might be of interest to users? And what compelled them to say "does not necessarily endorse"? You really should watch the video, though, as its "smarminess" is almost beyond words.

The wording "does not necessarily endorse" is common language for a generic link that could be going to something do endorse or could be going to something they don't endorse. This means that people who want to add a link to an external resource don't have to stop and get their internal lawyers to decide whether that is an endorsed reference or not.

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