Through scholarship, public analysis and direct engagement with the U.S. Senate, Elon Law Professor David S. Levine has spotlighted legal risks associated with the proposed Defend Trade Secrets Act and the Trade Secret Protection Act.
Working collaboratively with fellow trade secrets law expert Sharon K. Sandeen, professor at Hamline University School of Law, Levine has co-authored “Here Come the Trade Secret Trolls,” published in the Washington & Lee Law Review Online, Jan. 21, 2015. The article analyzes proposed legislation in Congress designed to confront cyberespionage against U.S. corporations, but with significant potential downsides, according to Levine and Sandeen, that have caused them to recommend abandonment of the legislation.
“We should all be alarmed by the possibility of creating conditions ripe for introducing trolling behavior into trade secrecy,” Levine and Sandeen write in the Washington & Lee article. “Trade secret trolls have been unable to emerge thus far because of the strengths of uniform state law and the checks against abuse found in established trade secret principles and corollary state law involving noncompete covenants and invention ownership. But the free-ranging, plaintiff-oriented Acts will destroy that delicate balance and defeat the very purpose of trade secret law as a force of maintenance of commercial ethics. Simultaneously, the Acts will replace that balance by creating near-perfect conditions for the rise of trade secret trolls, moving cyberespionage from the first to the second most important issue in trade secrecy law and practice for trade secret holders.”
Levine and Sandeen have taken a leadership role in the analysis of this legislation since the summer of 2014. They co-authored the Professors’ Letter in Opposition to the “Defend Trade Secrets Act of 2014” (S. 2267) and “Trade Secrets Protection Act of 2014” (H.R. 5233), signed by over 30 law professors and sent to both chambers of Congress in August 26, 2014. Extensive media coverage of this action included reporting by Bloomberg Bureau of National Affairs (BNA), Forbes, Law.com. Thompson Reuters and Law360. The letter was discussed by the Congressional Research Service in a publication entitled Protection of Trade Secrets: Overview of Current Law and Legislation (September 5, 2014).
In addition, Levine spoke at a United States Senate Judiciary Committee staff closed-door briefing on trade secret law reform that took place Sept. 4, 2014. Sandeen and Levine co-authored a Sept. 23, 2014 comment to the White House Office of Science and Technology Policy regarding national innovation strategy, focusing in part on this trade secrets legislation as well.
In the law professors’ letter to Congress, IP scholars expressed a clear critique of the problem that the legislation is designed to address: “While we acknowledge the need to increase protection both domestically and internationally against domestic and foreign cyber-espionage, this is not the way to address those concerns. Instead, as explained below, the Acts will create or exacerbate many existing legal problems but solve none.”
In the Washington & Lee article article, Levine and Sandeen note that the “risk of trade secret trolls, built around a primary concern about cyberespionage, has been largely absent in the history of trade secret law. They should be avoided, but Congress need not ignore the cyberespionage problem in order to abandon the Acts.” In their article, Levine and Sandeen suggest alternative ways to address the problem of cyberespionage, including amending the federal Computer Fraud and Abuse Act.
On Jan. 6, Levine was reappointed as an affiliate scholar of Stanford Law’s Center for Internet and Society. He is a 2014-2015 Visiting Research Collaborator at Princeton University’s Center for Information Technology Policy (CITP). More information about Elon Law Professor David S. Levine is available here.
Additional recent scholarly publications, presentations and service activities of Levine include:
Publication of the book chapter, Trade Secrets and Climate Change: Uncovering Secret Solutions to the Problem of Greenhouse Gas Emissions (with Sharon Sandeen of Hamline Law), in Research Handbook on Intellectual Property and Climate Change, Josh Sarnoff ed. (Edward Elgar, 2015).
Moderated a copyright law panel at Duke Law’s Fifth Annual Sports and Entertainment Law Symposium on Jan. 16. The panel’s discussion focused on the recent U.S. Supreme Court decision in ABC v. Aereo involving transmission of copyrighted works over the Internet.
On Jan. 9, Levine presented a scholarly work in progress at the Tristate Area IP Workshop at NYU Law.
Levine spoke with Bloomberg radio on Jan. 6, discussing a class-action lawsuit accusing Apple of misrepresenting iPhone and iPad storage with its iOS 8 operating system.
Faculty Colloquium Speaker, Seton Hall Law School (November 17, 2014).
Panelist, Trusting Human Safety to Software, Princeton Center for Information Technology Policy (November 4, 2014).
Author, Trade Secrecy and the Trans-Pacific Partnership Agreement: Secret Lawmaking Meets Criminalization, American University’s Program on Information Justice and Intellectual Property Blog, October 27, 2014.
Invited Panelist, International Law Weekend 2014 of the American Branch of the International Law Association, Fordham Law School (October 24, 2014) (discussing copyright and human rights).
Faculty Lunch Speaker, Drexel Law School (October 22, 2014).
Invited Speaker, Houston Intellectual Property Law Association Annual Intellectual Property Institute (October 9, 2014).
Guest Lecture, Prof. Andrew Chin of North Carolina Law’s Cyberlaw Seminar (September 24, 2014).
Invited Speaker, Princeton Center for Information Technology Policy lunch speaker series (August 11, 2014).
Speaker, Intellectual Property Scholars Conference, Berkeley School of Law (August 8, 2014).
Author, The MH17 Disaster Demonstrates Danger of “Right to be Forgotten,” Slate, July 22, 2014.
Guest, Connect the Dots, Progressive Radio Network (June 11, 2014).
Guest, Lifeboat Hour, Progressive Radio Network (May 25, 2014).
Stakeholder Speaker, Transatlantic Trade and Investment Partnership 5th round of negotiations, Arlington, Virginia (May 21, 2014): discussing the conditions under which draft negotiation texts should be made public.
Panel Moderator, Organizer and Speaker, Transparency and the Democratic Process in Trade Negotiations, American University’s Program on Information Justice and Intellectual Property (May 20, 2014).
Moderator, Sixth Workshop on the Philosophy of Information, Duke University (May 15, 2014).
Publication of: Secrecy and Unaccountability: Trade Secrets in Our Public Infrastructure (Florida Law Review 2007): reprinted in Trade Secrets and Undisclosed Information, part of Edward Elgar’s Critical Concepts in IP Law series (2014).
On Feb. 6, Levine will present at the “IP Strategy in the Digital Age” symposium at Wake Forest University School of Law.