Misappropropriation on a Global Scale: Extraterritoriality and Applicable Law in Transborder Trade Secrecy Cases

Forthcoming, 8 Cybaris Intell. Prop. L. Rev. 265 (2017)

NYU School of Law, Public Law Research Paper No. 17-52

62 Pages Posted: 15 Dec 2017 Last revised: 20 Dec 2017

See all articles by Rochelle Cooper Dreyfuss

Rochelle Cooper Dreyfuss

New York University - School of Law

Linda Silberman

New York University School of Law

Date Written: December 12, 2017

Abstract

In recent years, trade secrecy has come to the fore as changes such as value chain production methods, employee mobility, and cloud storage have increased the opportunity to take and use valuable information without authorization. The United States recently created a federal private right of action for trade secret misappropriation and a Directive of the European Union imposes on member states a requirement that they too enact trade secrecy protection. Other countries are similarly revising their trade secrecy laws. While these laws share a framework based on the TRIPS Agreement, they differ in significant respects, raising the question which law ought to apply to transnational cases. This paper, authored jointly by an intellectual property professor and a conflicts scholar, is among the first to consider the issue. We do so in the context of exclusion orders in the International Court of Trade (ITC) under the Tariff Act, actions under the new federal statute, and state trade secrecy claims. We suggest that because the ITC provides a remedy that affects only US markets, the United States can always apply its own law to US trade secrets—trade secrets developed in the United States. In other contexts, we believe courts should have the ability to apply US or foreign law based on the principle that the law of the place of development of the trade secret governs if it is foreseeable by the defendant. If not, the applicable law is likely to be the place where the defendant acted.

Keywords: intellectual property, trade secrets, conflicts of law, applicable law, extraterritoriality, ITC, DTSA

JEL Classification: K4, K33, K39

Suggested Citation

Dreyfuss, Rochelle Cooper and Silberman, Linda, Misappropropriation on a Global Scale: Extraterritoriality and Applicable Law in Transborder Trade Secrecy Cases (December 12, 2017). Forthcoming, 8 Cybaris Intell. Prop. L. Rev. 265 (2017), NYU School of Law, Public Law Research Paper No. 17-52, Available at SSRN: https://ssrn.com/abstract=3086819

Rochelle Cooper Dreyfuss (Contact Author)

New York University - School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6258 (Phone)
212-995-4760 (Fax)

Linda Silberman

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6204 (Phone)
212-995-4341 (Fax)

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