A New Framework for Assessing Clinical Data Transparency Initiatives

2. The Doctrinal Debate Collapses A great deal of scholarship has attempted to make sense of trade secret law, categorizing and critiquing its various justifications and objectives and, in at least one instance, also suggesting that at bottom there is no such thing as a coherent and separate body of trade secret law. (72) The story this scholarship tells of the history and black letter content of state trade secret law is consistent. What varies meaningfully, however, is whether and how scholars see an underlying doctrine and how they describe and assess its justifications. In particular, the scholarship is dominated by an enduring doctrinal debate: whether trade secret law is primarily a law of liability (relationship) principles or a law of property (exclusivity and ownership). The argument that trade secret law in the United States is primarily a law about the liability that attaches when parties in relationships violate social norms rely heavily on a key sentence in Justice Holmes's 1917 decision, E.I. du Pont de Nemours Powder Co. v. Masland. (73) Masland concerned secrets learned by Walter Masland while employed by DuPont. Masland was establishing a business that would manufacture artificial leather, and some of the secrets at issue were relevant, although Masland himself asserted that much of the information was in fact "well known to the trade." DuPont nevertheless sought an injunction to prevent Masland from using or disclosing those secrets. As part of the litigation, to defend against the injunction, Masland proposed to disclose the secrets in question to experts and witnesses. At issue before the Supreme Court was the appropriateness of an injunction against disclosing the trade secrets to experts, consultants, and defense counsel for purposes of defense. The case was put to the Court as a conflict between the right of property and the right to make a full defense. In a terse three-paragraph opinion, Justice Holmes brushed that proposed conflict aside. Rather than attempting to resolve a fundamental conflict of first principles, he picked a narrower resolution: "Whether the plaintiffs have any valuable secret or not[,] the defendant knows the facts, whatever they are, through a special confidence he accepted. The property may be denied, but the confidence cannot be." Thus, "the starting point for the present matter is not property or due process of law, but that the defendant stood in confidential relations with the plaintiffs, or one of them ... If there is any disadvantage in the fact that he knew the plaintiffs' secrets, he must take the burden with the good." (74) Those who favor the view that trade secret law is primarily a law of unfair competition suggest that Justice Holmes effectively rejected the argument that trade secrets were property. They note also that the drafters of the first Restatement in 1939 took pains to distance trade secret liability principles from property doctrine. Indeed, comment a noted that "[t]he suggestion that one has a right to exclude others from the use of his trade secret because he has a right of property in the idea has been frequently advanced and rejected." (75) According to the drafters, "[t]he theory that has prevailed is that the protection is afforded only by a general duty of good faith and that the liability rests upon breach of this duty." (76) In other words, they asserted, the essence of liability lies in breach of contract, abuse of confidence, or improprieties in obtaining the secret. (77) The ALI later moved trade secrets entirely to the Restatement (Third) of Unfair Competition, again reflecting the supposedly predominant view that trade secret law is primarily about enforcing behavioral norms in business relationships. (78) While the language of natural property rights can be found in early trade/business secret jurisprudence, this approach did not survive the emergence of legal realism in the early twentieth century. (79) Thus, this view holds, trade secrets are not really property at all. …