Re: Consideration in a Shrinkwrap Contract

From: Bryan Taylor <bryan_w_taylor[_at_]yahoo.com>
Date: Thu, 5 Oct 2000 13:46:54 -0700 (PDT)

• Steve Jamar <sjamar[_at_]law.howard.edu> wrote:

> > Of course, if the work is not copyrighted then ASPs can still claim
> > that any independent creation is a violation of their trade
> > secrets-- that is in fact what DVD CCA is claiming in
> > the California case.
>
> No, they cannot claim that "any independent creation is a violation
> of their trade secrets."
> There must be a wrongful acquisition of the trade secret, and the
> secret must really be a secret. Independent creation by its very
> terms negates wrongful acquisition. Furthermore,
> even reverse engineering does not violate trade secret law - it if
> can be reverse engineered, it isn't a secret.

I agree completely and am eagerly awaiting judge Elfing's reversal.

I have been quite dumfounded by the inability of the judges in the DVD cases to follow what seem like settled principles to me.

Elfing admits there is no proof of a confidential relationship, recognized that even if there was an agreement to enter into such that it might have been preempted by Norwegian law, and also applies the restriction transitively so that even people who originally believed they received the information legitimately are now retroactively infected with a duty to secrecy, and this despite the fact that a method to determine the player keys without having a player at all has been available since before the suit began.

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