Re: NBA v. Motorola

John Noble writes:
>
> I don't understand the textual basis for distinguishing between
> published and unpublished works in a preemption analysis. And I don't
> see a readily applied policy distinction between "widely distributed"
> works, as to which re-distribution restrictions would be preempted,
> and less widely distributed works, as to which they would not be
> preempted. At what point is something "widely distributed"? If I sell
> -- excuse me, _license_ -- 10 copies of a database is that widely
> distributed. 100 copies? 1,000 copies? Can the scope of protection
> depend on the breadth of the market?
>

Isn't this exactly the contour of trade secret protection? The law seems relatively clear that I can distribute a work under confidentiality restriction to a few people, but that if I distribute it to millions, I no longer have a secret (at least if the information is evident from an inspection of the product). Somewhere between one and millions, there is a line that must be drawn.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Mon Feb 24 1997 - 16:00:53 GMT