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The Law and Theory of Trade Secrecy

The Law and Theory of Trade Secrecy

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg

This timely Handbook marks a major shift in innovation studies, moving the focus of attention from the standard intellectual property regimes of copyright, patent, and trademark, to an exploration of trade secrecy and the laws governing know-how, tacit knowledge, and confidential relationships.

Chapter 15: The Troubling Consequences of Trade Secret Protection of Search Engine Rankings

Frank Pasquale

Subjects: law - academic, intellectual property law


Frank Pasquale* Search is the watchword of the information age. Among the many new information 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 competition. 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 at the University of Pennsylvania for their insightful comments on and critiques of this work, and to Stephen...

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