ࡱ> ac\]^_`` ybjbjss 1Mo *8"l5>fF^  <=======$ @hsB=G  G G = =4}&}&}&G V  =}&G =}&}&b56 Z Pll6 &6=|=<5>867C" 7C$67C6,<}& ==%5>G G G G D>Df4> SAVING TRADE SECRET DISCLOSURES ON THE INTERNET THROUGH SEQUENTIAL PRESERVATION Elizabeth A. Rowe(  TOC \o "1-3" \h \z \u  HYPERLINK \l "_Toc142125757" I. INTRODUCTION  PAGEREF _Toc142125757 \h 3  HYPERLINK \l "_Toc142125758" A. The Power of the Internet  PAGEREF _Toc142125758 \h 4  HYPERLINK \l "_Toc142125759" B. Legal Complications  PAGEREF _Toc142125759 \h 6  HYPERLINK \l "_Toc142125760" C. The Articles Mission  PAGEREF _Toc142125760 \h 8  HYPERLINK \l "_Toc142125761" II. TRADE SECRET LAW BACKGROUND  PAGEREF _Toc142125761 \h 9  HYPERLINK \l "_Toc142125762" A. Trade Secret Defined  PAGEREF _Toc142125762 \h 10  HYPERLINK \l "_Toc142125763" 1. Restatement (First) of Torts  PAGEREF _Toc142125763 \h 10  HYPERLINK \l "_Toc142125764" 2. Uniform Trade Secrets Act  PAGEREF _Toc142125764 \h 12  HYPERLINK \l "_Toc142125765" 3. The Restatement of Unfair Competition  PAGEREF _Toc142125765 \h 15  HYPERLINK \l "_Toc142125766" B. Trade Secret Misappropriation Defined  PAGEREF _Toc142125766 \h 17  HYPERLINK \l "_Toc142125767" 1. Restatement (First) of Torts -- Misappropriation  PAGEREF _Toc142125767 \h 17  HYPERLINK \l "_Toc142125768" 2. Misappropriation Generally -- UTSA  PAGEREF _Toc142125768 \h 18  HYPERLINK \l "_Toc142125769" 3. Misappropriation Defined Unfair Competition  PAGEREF _Toc142125769 \h 20  HYPERLINK \l "_Toc142125770" C. Economic Espionage Act of 1996  PAGEREF _Toc142125770 \h 21  HYPERLINK \l "_Toc142125771" D. Lawful Use of Anothers Trade Secrets  PAGEREF _Toc142125771 \h 22  HYPERLINK \l "_Toc142125772" E. Equitable Nature of Trade Secret Law  PAGEREF _Toc142125772 \h 23  HYPERLINK \l "_Toc142125773" III. THE INTERNET  PAGEREF _Toc142125773 \h 24  HYPERLINK \l "_Toc142125774" IV. Summary of Relevant Case Law  PAGEREF _Toc142125774 \h 25  HYPERLINK \l "_Toc142125775" A. The Church of Scientology Cases  PAGEREF _Toc142125775 \h 26  HYPERLINK \l "_Toc142125776" B. DVD Copy Control Assoc. v. Bunner  PAGEREF _Toc142125776 \h 28  HYPERLINK \l "_Toc142125777" C. United States v. Genovese  PAGEREF _Toc142125777 \h 30  HYPERLINK \l "_Toc142125778" V. Analyzing the third party problem  PAGEREF _Toc142125778 \h 32  HYPERLINK \l "_Toc142125779" A. Is it a trade secret?  PAGEREF _Toc142125779 \h 33  HYPERLINK \l "_Toc142125780" 1. Is a Posting on the Internet Generally Known?  PAGEREF _Toc142125780 \h 36  HYPERLINK \l "_Toc142125781" 2. Is a Posting on the Internet Readily Ascertainable?  PAGEREF _Toc142125781 \h 40  HYPERLINK \l "_Toc142125782" B. Is it Misappropriation?  PAGEREF _Toc142125782 \h 44  HYPERLINK \l "_Toc142125783" VI. Other Obstacles to Trade Secret Protection  PAGEREF _Toc142125783 \h 47  HYPERLINK \l "_Toc142125784" A. First Amendment  PAGEREF _Toc142125784 \h 48  HYPERLINK \l "_Toc142125785" B. Fourth Amendment  PAGEREF _Toc142125785 \h 51  HYPERLINK \l "_Toc142125786" C. Patent Law  PAGEREF _Toc142125786 \h 52  HYPERLINK \l "_Toc142125787" VII. Assistance From attorney client privilege Cases  PAGEREF _Toc142125787 \h 54  HYPERLINK \l "_Toc142125788" A. In re Grand Jury Proceedings Involving Berkley and Co  PAGEREF _Toc142125788 \h 55  HYPERLINK \l "_Toc142125789" B. Resolution Trust Corp. v. Clayton J. Dean  PAGEREF _Toc142125789 \h 56  HYPERLINK \l "_Toc142125790" C. C.P. Smith v. Armour Pharmaceuticals  PAGEREF _Toc142125790 \h 57  HYPERLINK \l "_Toc142125791" D. United States ex rel. Jerry Mayman v. Martin Marietta  PAGEREF _Toc142125791 \h 58  HYPERLINK \l "_Toc142125792" VIII. The Sequential Preservation Model  PAGEREF _Toc142125792 \h 58  HYPERLINK \l "_Toc142125793" A. Threshold Issue Establish Trade Secret Status  PAGEREF _Toc142125793 \h 60  HYPERLINK \l "_Toc142125794" B. The Three Factors  PAGEREF _Toc142125794 \h 62  HYPERLINK \l "_Toc142125795" 1. Time and Action  PAGEREF _Toc142125795 \h 62  HYPERLINK \l "_Toc142125796" 2. Extent of Disclosure  PAGEREF _Toc142125796 \h 64  HYPERLINK \l "_Toc142125797" 3. Recipients Reason to Know the Information was Trade Secret  PAGEREF _Toc142125797 \h 67  HYPERLINK \l "_Toc142125798" IX. Theoretical Summary of the Sequential Preservation Model  PAGEREF _Toc142125798 \h 72  HYPERLINK \l "_Toc142125799" X. Remedies  PAGEREF _Toc142125799 \h 73  HYPERLINK \l "_Toc142125800" XI. Conclusion  PAGEREF _Toc142125800 \h 76  I. INTRODUCTION The recipe for Coco-Cola is one of the best kept secrets in the world. The company reportedly goes through great lengths to keep it secret and maintain its trade secret status. The ingredients are known by only two unidentified company officials, and the formula itself is safely locked in a bank deposit box that may be accessed only by an affirmative vote of the companys board of directors. Imagine that one morning, Susan, in-house counsel at The Coca-Cola Company learns from an anonymous caller that Pep-Cola, a competitor, has acquired the recipe and is planning to use it. She immediately contacts Pep-Cola, demands that they return the recipe and not use it. Pep-Cola refuses to comply, claiming that the recipe was found through a Google search, and is now public and no longer a trade secret. The Coca-Cola Company sues Pep-Cola for misappropriation of trade secrets, seeking a preliminary injunction to prohibit its use of the recipe. After a hearing, the court denies relief to The Coca-Cola Company, reasoning that despite its best efforts to keep its ingredients secret, the recipe has lost its trade secret status by virtue of it appearing on the Internet, and that Pep-Cola cannot be enjoined from using it. The Coca-Cola Co. now faces widespread use of its recipe by other competitors and a resulting loss of market share for its Coca-Cola beverage. It can no longer claim the recipe as a trade secret. This hypothetical introduces the problem and accompanying questions tackled by this Article. When, for instance, an employee discloses an employers trade secrets to the public over the Internet, does our current trade secret framework appropriately address the consequences of that disclosure? What ought to be the rule which governs whether the trade secret owner has lost not only the protection status for the secret, but any remedies against use by third parties? Should the ease with which the Internet permits instant and mass disclosure of secrets be taken into consideration in assessing the fairness of a rule which calls for immediate loss of the trade secret upon disclosure? The Power of the Internet Although trade secret owners have always risked disclosure of their highly sensitive and confidential information, today the Internet magnifies that risk exponentially. It facilitates complete destruction of a trade secret in an instant, and the law strips the trade secret owners power to control or contain the damage. Even when the party posting the information may not have intended to cause harm to the trade secret owner, the injury can be no less devastating. One court, while refusing to enjoin publication of a companys trade secrets on First Amendment grounds, nevertheless noted the shift in balance of power made possible by the Internet: [w]ith the Internet, significant leverage is gained by the gadfy, who has no editor looking over his shoulder and no professional ethics to constrain him. Technology blurs the traditional identities of David and Goliath. Unlike other mass media which generally have staff who decide what materials will be published, the Internet has no such filter. Any person sitting at a computer may post information onto the Internet, resulting in immediate and irreparable harm. One judge captured the problem in these words: The court is troubled by the notion that any Internet user . . . can destroy valuable intellectual property rights by posting them over the Internet, especially given the fact that there is little opportunity to screen postings before they are made . . . Nonetheless, one of the Internets virtues, that it gives even the poorest individuals the power to publish to millions of readers . . . can also be a detriment to the value of intellectual property rights. The anonymous (or judgment proof) defendant can permanently destroy valuable trade secrets, leaving no one to hold liable for misappropriation. The power of the Internet has added complexity to the archetypal two person misappropriation framework traditionally encountered in trade secret law. Misappropriation claims often arise in an employment context, for instance, where an employee leaves for new employment with a competitor and takes the former employers trade secrets. The employer, trade secret owner, can state misappropriation claims against the former employee, and often the new employer. In the case of an Internet disclosure, however, the current law suggests that there is no claim against the third parties who discover the information, and thus no feasible way to contain the dissemination of the trade secret. Legal Complications Further complicating the situation is that trade secret law only protects secret information. Consistent with that framework, it is therefore difficult to argue that information which appears on the World Wide Web, and which is admittedly no longer secret, can retain trade secret protection. Yet, trade secret law is also equitable, and intended to regulate the morality of the business world. Why then should we create incentives for inappropriate and unethical conduct, by permitting a single individuals disclosure of a trade secret to destroy that which has been so well guarded by a trade secret owner? A sound analysis of this complicated problem calls for a balancing of the right of the trade secret owner to preserve its trade secret information, the right of an innocent independent third party to use information found in the public domain, and the policies favoring fair competition. A view from outside trade secret law also provides guidance for and against the case for retention of trade secret status after an Internet disclosure. On one hand, constitutional law and patent law considerations lean toward prohibiting restrictions on the use of publicly available information. On the other hand, attorney client privilege cases, in analogous circumstances support preservation. The Articles Mission Several commentators have identified the problem posed by trade secret disclosures over the Internet, but none have analyzed the problem with the same depth and approach used in this article. The Article critically examines relevant trade secret doctrines, dissecting assumptions and methodically examining whether it is possible to retain trade secret protection in the face of a disclosure over the Internet. It also draws guidance from other areas of law, and together this critical examination informs what I coin a sequential preservation model. Accordingly, this model is a unique and novel approach to the problem. The sequential preservation model calls for a threshold determination of whether the information was entitled to trade secret protection before the Internet disclosure. If and only if it was, then the three factor test will be used to evaluate whether it retained the trade secret status, which was ultimately misappropriated. Those three factors consider (1) the amount of time the information was exposed on the Internet and the promptness of any action by the trade secret owner to have the information removed, (2) the extent of the disclosure, and (3) the likelihood that the recipient knew the information was trade secret. Part II of the Article provides a background summary of trade secret law. Part III introduces relevant concepts about the Internet, and Part IV summarizes the relevant case law in this area. Part V analyzes the third party disclosure problem. Insights from other areas of law are provided in Parts VI and VII. Part VIII presents the proposed model and the three factor test for analyzing these cases, followed by a theoretical summary of the model in Part IX. Part X addresses remedies available to a trade secret owner, and the Article concludes in Part XI. II. TRADE SECRET LAW BACKGROUND Unlike the other areas of intellectual property (copyrights, patents, and trademarks), there is no federal statutory law governing trade secrets. Rather, trade secrets are protected by state law. Most states have adopted the Uniform Trade Secrets Act (UTSA), and as a result there is some uniformity in defining trade secrets and trade secret misappropriation. The states that have not adopted the UTSA tend to rely on common law based on the Restatement of Torts. Finally, and more recently, the Restatement (Third) of Unfair Competition also addresses trade secrets. Its rules apply to actions under both the UTSA and the Restatement of Torts. Most courts appear to rely on the definitions in the UTSA or in the Restatement of Torts, and as such this article will as well for most of the analysis which follows. Trade Secret Defined Restatement (First) of Torts The Restatement of Torts defines a trade secret as any formula, pattern, device or compilation of information, which is used in ones business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. The Restatement identified six factors generally used to determine whether information is trade secret, and these factors continue to govern through the U.T.S.A. The six factors are: the extent to which the information is known outside of the business; the extent to which it is known by employees and others involved in the business; the extent of measures taken to guard the secrecy of the information; the value of the information to the business and to its competitors; the amount of effort or money expended by the business in developing the information; and the ease of difficulty with which the information could be properly acquired or duplicated by others. Other than the first factor, which essentially asks whether the information is secret, no one factor is determinative and each of the factors must be weighed to determine whether a trade secret exists. Uniform Trade Secrets Act In 1979 the Uniform Trade Secrets Act (UTSA) was approved by the National Conference of Commissioners on Uniform State Laws. It codifies the basic principles of common law trade secret protection. The UTSA was developed for three reasons: (a) To protect those with substantial investments in technology, (b) to eliminate inconsistencies between different states in interpreting trade secret law, and (c) because there were few reported decisions on trade secret law in some states. It has been adopted in whole or part by forty-four states and Washington, D.C. The six states that have not enacted the UTSA are Massachusetts, New Jersey, New York, North Carolina, Texas, and Wyoming. The UTSA defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique or process, that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.  It is noteworthy that a trade secret may take many different forms and is not limited to, for instance, a chemical formula that may immediately come to mind when one thinks of a trade secret. Rather, any kind of information may constitute a trade secret as long as it meets the secrecy requirements. Some courts have found that confidential business information, such as customer lists, accounts receivable, sales records, costs, pricing, [and] inventories and customer information, including credit history, sales volume, prospective future business, service relationships, special needs of customers, supplier lists, cost information, pricing policies and profitability constitutes protected trade secrets if it has not been disclosed and it is not generally known in the trade. Similarly, UTSA jurisdictions have found that unpublished pricing information, secret contract terms, marketing strategies and industry studies are also protected trade secrets. The UTSA provides broader protection than the Restatement in that it does not require that a trade secret be in use to be protected, and it protects negative information about research or a process that does not work. The UTSA also allows for injunctions against threatened misappropriation of trade secrets.  However, despite the wide adoption of the UTSA, 757 of the Restatement (First) of Torts continues to have interpretive force across the country in both UTSA and non-UTSA jurisdictions. The Restatement of Unfair Competition Instead of revising the trade secrets portion of the Restatement (First) of Torts, the American Law Institute chose to omit the topic from the Restatement (Second) of Torts and include it in the Restatement of Unfair Competition. In 1995, the Restatement (Third) of Unfair Competition was released. It reflected the changes in the law since the Restatement (First) of Torts, in particular the adoption of the UTSA by a majority of states. The authors apparently believed that trade secret analysis was more properly analyzed under the law of unfair competition than tort law. This is an interesting shift in the overall treatment of this area of the law and it corresponds with the growing union of trade secret and unfair competition issues becoming evident in the case law. In a nutshell, this Restatement provides an expansive definition of trade secret as something of value that is secret: any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others. This definition, although different from that in the UTSA, was meant to be consistent with the UTSA. Indeed, section 39 of the Restatement (Third) makes clear that "the concept of a trade secret as defined in this Section is intended to be consistent with the definition of trade secret in 1(4) of the Act. Interestingly, the drafters of the Restatement (Third) did not incorporate the Restatement of Torts six-factor test for determining the existence of a trade secret. However, even despite this omission from the Restatement (Third) and its lack of written presence in the UTSA many courts continue to rely heavily on the six factors for guidance. Trade Secret Misappropriation Defined Restatement (First) of Torts -- Misappropriation The use of improper means to procure a trade secret, rather than the mere copying of the trade secret, forms the basis for liability under the Restatement (First). Thus, it is the breach of ones duty of good faith through breach of contract, abuse of confidence, or impropriety in the method ofascertaining the trade secret that makes it misappropriation. The Restatement specifically sets forth that: One who discloses or uses another's trade secret, without a privilege to do so, is liable to the other if he discovered the secret by improper means, or his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by impropermeans or that the third person's disclosure of it was otherwise a breach of his duty to the other, or he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake  The Restatement recognizes that an injunction against future harm by disclosure or adverse use as an appropriate remedy. Misappropriation Generally -- UTSA Misappropriation occurs under the UTSA: (a) when a trade secret is acquired by a person who knows (or has reason to know) that the trade secret was attained through improper means and (b) when a trade secret is disclosed, without express or implied consent, by a person who: (i) used improper means to gain knowledge of the trade secret; (ii) knew or had reason to know that his or her knowledge of the trade secret was derived from one who used improper means to acquire it; or (iii) knew or had reason to know that his or her knowledge of the trade secret was acquired or derived from one who owed a duty to the person seeking relief to maintain its secrecy. Misappropriation further includes use of a trade secret that has been acquired by accident or mistake. Improper means under the UTSA includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Misappropriation Defined Unfair Competition Liability for misappropriation under the Restatement (Third) of Unfair Competition is nearly identical to that of the UTSA. Subsection (b) of the Restatement (Third) mirrors the rule adopted in the UTSA, imposing liability for the acquisition of a trade secret by improper means. Economic Espionage Act of 1996 In 1996 Congress passed the Economic Espionage Act of 1996 (the EEA) which provides the first comprehensive criminal federal trade secrets law on trade secret theft and misappropriation. The EEA criminalizes theft of trade secrets and economic espionage for the benefit of a foreign government, instrumentality or agent.  The Act defines trade secret broadly, utilizing parts of the definitions provided in the UTSA, Restatement (First) of Torts and the Restatement (Third) of Unfair Competition. In order to state a claim under the Act for theft of trade secrets, the government must establish that the defendant knowingly stole, or obtained information that was trade secret without authorization. It covers such computer assisted methods of misappropriation such as copying, downloading, uploading, transmitting, delivering, and altering. Lawful Use of Anothers Trade Secrets Unlike patent law which grants exclusive use to a patent holder, the owner of a trade secret does not enjoy the same level of exclusivity. Not only can the same information be considered a trade secret by more than one owner, but not all use of a trade secret is an unlawful misappropriation. Rather, only trade secrets that have been acquired through improper discovery are unlawful. A trade secret owner may grant permission to use a trade secret. Even without consent or permission, however, a party may make lawful use of anothers trade secrets in three main ways. First, one who independently discovers or invents a trade secret is entitled to use it. Second, one who actually reverse engineers a trade secret (obtained fairly and honestly) is not subject to liability for trade secret misappropriation. Finally, and most relevant to this Article, where a party learns a trade secret through a disclosure that was not made in breach of a contract or special relationship or with knowledge of such a breach, she is entitled to use it. Thus, a trade secret owner has no protection for a trade secret that is accidentally disclosed. Of even greater significance is that once disclosed, the trade secret no longer exists as to other parties because the requisite level of secrecy cannot be met. Equitable Nature of Trade Secret Law Trade secret law is the branch of intellectual property law that most closely regulates standards of commercial ethics, guides morality of the business world, and underscores fair dealing. It is probably in part for this reason that trade secret law is now codified in the Restatement of Unfair Competition rather than in the Restatement of Torts. Its equitable nature is evident in most court opinions, as judges struggle to decide that which is fair to the parties, as they assess, sometimes impliedly, such elements as good faith, honesty, and fair dealing. Consistent with these underlying ethical and equitable approaches, trade secret law prohibits the use of improper means to acquire trade secrets under all three statutory frameworks described above. This is not an insignificant fact, and should be crucial to analyzing the third party problem presented in this Article. Thus, the extent to which acquisition of anothers trade secrets over the Internet involved improper means by both the original misappropriator and the third party user ought be considered in the backdrop of this complicated quagmire. III. THE INTERNET Virtually every workplace today has at least one computer, and a reported 77 million people use a computer at work. The most likely task to be performed on a computer is accessing the Internet or using e-mail. In addition, over fifty percent of all households are connected to the Internet. The Internet has become an important part of daily life, connecting approximately 800 million people to a global network. Its presence has changed the way in which the world does business and its impact on the economy is far reaching. This Article often refers to trade secret information being posted on the Internet. Posting consists of directly placing material on or in a Web site, bulletin board, discussion group, newsgroup, or similar Internet site or forum, where it will appear automatically and more or less immediately to be seen by anyone with access to that forum. It therefore allows direct self-publication of information, or one may also send information to a site, the owners or moderators of which make decisions about what to post. IV. Summary of Relevant Case Law The cases below are representative of the trade secret disclosure problem. They reflect the courts attempts to wrestle with the bright line rule against protecting non-secret information and the equitable considerations underlying trade secret law. Interestingly, the cases reveal the range of potential actors who could expose secrets, from insiders (like employees) to outsiders who purportedly are motivated by the public interest. The Church of Scientology Cases In Religious Technology Center v. Lerma, Lerma, a disgruntled former member of the Church of Scientology, published documents taken from a court record onto the Internet. The Church considered these documents to be trade secrets and sued Lerma to enjoin him from disseminating the alleged trade secrets. The court refused to issue the injunction because by the time the Church sought the injunction, the documents no longer qualified as trade secrets. The court bluntly stated that once a trade secret is posted on the Internet, it is effectively part of the public domain, impossible to retrieve.  The court was not moved by the fact that the church had taken extraordinary measures to keep the documents secret, including having a Church member sign out the court file on a daily basis. In another Scientology case, the Church sought an injunction against another disgruntled former member who posted Church writings on several USENET groups. In examining the Churchs claim that the writings were trade secrets, the court stated that while the defendant could not rely on his own improper posting of the writings to the Internet to support the argument that the writings were no longer secrets, evidence that an unrelated third party posted them would result in a loss of secrecy and a loss of trade secret rights. Despite being troubled by the notion that any Internet user can destroy valuable intellectual property rights by posting them over the Internet, the court held that since the writings were posted on the Internet, they were generally available to the relevant public and there was no trade secret right available to support an injunction. In a motion six months later, the Church again sought an injunction on trade secret grounds, this time introducing consumer surveys to show that the writings were not generally known. The court struck the surveys as irrelevant because they were surveys of the general public and not of the Churchs competitors. However, the court retreated from its earlier statement that posting to the Internet destroys trade secret protection. Instead, the court announced that a determination of trade secret protection requires a review of the circumstances surrounding the posting and consideration of the interests of the trade secret owner, the policies favoring competition and the interests, including first amendment rights,[sic] of innocent third parties who acquire information off the Internet. Since under this new test, the trade secret status of the Churchs documents was an open question, the court granted a preliminary injunction. DVD Copy Control Assoc. v. Bunner In DVD Copy Control Assoc. v. Bunner, the plaintiff association developed an encryption program called CSS to limit the copying of DVDs by DVD players and computers that could decrypt CSS. By reverse engineering plaintiffs program, a Norwegian teen created a program called DeCSS that allowed encrypted DVDs to be played on any DVD player or computer. Defendant Bunner found and posted that program on the Internet for anyone to use. The plaintiff filed a suit for injunctive relief to prevent Bunner from posting or linking to the DeCSS program on the Internet. The court noted that Bunners reverse engineering did not qualify as using improper means to acquire trade secrets under the Uniform Trade Secrets Act, but that Bunner disclosed trade secrets he knew or should have known were proprietary information. However, the court denied the preliminary injunction, finding that it would be a prior restraint of pure speech. The court held that traditional intellectual property exceptions to the prior restraint doctrine do not apply since Bunner did not actually use the information or breach a contractual obligation. After an appeal by the California Supreme Court, which held that an injunction would not violate the First Amendment if there was a trade secret, the court was asked on remand to determine whether a trade secret still existed. The court noted that widespread publication of a trade secret over the Internet will destroy its status as a trade secret. However, the court went on further to reason that the information retains its value to the creator if the Internet publication is sufficiently obscure or transient so that it does not become generally known to those who would consider it valuable. The court rejected plaintiffs public policy arguments for protecting trade secrets, holding that allowing injunctions once a trade secret has become public could theoretically put the entire general public at risk for liability. Since the trade secret had been widely disseminated, an injunction would not prevent any further harm from occurring to the plaintiff, so the court denied the injunction. United States v. Genovese In United States v. Genovese, defendant Genovese was charged with offering Microsoft source code for sale on the Internet in violation of the Economic Espionage Act of 1996 (EEA). Genovese challenged the indictment on the grounds that the statute, which makes downloading and selling a trade secret a crime, violated the First Amendment and the Due Process Clause. The court noted that the First Amendment protects computer source code and other trade secrets, but held that the First Amendment does not protect conduct such as trying to convert a trade secret for economic gain. On the due process challenge, Genovese argued that criminalizing the download and sale of trade secrets under the statute was vague because he could not have known the source code was not generally known or that Microsoft took reasonable measures to protect it. However, the court held that under the EEA, a trade secret does not lose its protection when temporarily, accidentally, or illicitly released to the public, provided it does not become generally known. The court observed that since Genovese sold the source code, it still retained some value and was not generally known. V. Analyzing the third party problem This Article tackles the problem which arises when an independent third party discovers anothers trade secrets on the Internet and uses or intends to use it. The trade secret owner has misappropriation claims against the original misappropriator. If the original misappropriator did not post the information himself, then whoever posted the information may also be liable. As against an independent third party who comes upon the information once posted, however, it is unclear whether the trade secret owner has any remedies under trade secret law to prevent use of the information. Indeed, the current status of trade secret law would suggest that the third party would be entitled to use information she obtained from the public domain, assuming that she did not employ improper means to obtain the trade secret, has no knowledge that the it was obtained by improper means, or is not bound by any contractual or special relationship with the trade secret owner. However, that initial conclusion necessarily makes several underlying assumptions about trade secret law and Internet publication. Among these assumptions are that (i) the information was a trade secret at the time it was discovered (ii) the fact that information appeared on the Internet makes it public, generally known, and readily ascertainable, and (iii) the discovery was not through improper means. This section will dissect each assumption to analyze whether or not it is reasonable to conclude that the trade secret owner is not likely to prevail against an independent third party either because the information was not trade secret by the time it reached the third party or that even if the information is determined to be trade secret it was not misappropriated by the third party. The succeeding two sections will then turn to a broader view outside of trade secret law for guidance, followed by the proposed model. Is it a trade secret? The first hurdle, and first step, to a trade secret owner whose proprietary information has been discovered on the Internet, is proving that the information has not lost its trade secret status by virtue of its publication in this medium. While in the typical misappropriation case a trade secret owner must prove that the information is the type of information that is protectable under trade secret law, and that she took reasonable steps to maintain its secrecy, the Internet publication problem presented here is complicated by additional layers of proof. This is primarily because the third party (vis a vis, for instance, a former employee who discloses an employers trade secrets) would not be breaching any contract or duty to the trade secret owner, and would have discovered the information in an arguably public place. Given the factual scenario presented here, the relevant applicable requirements from the UTSAs definition of trade secret are that the information (i) not be generally known and (ii) not be readily ascertainable by proper means. This leads to further inquiry as to whether a posting on the Internet is generally known and readily ascertainable and whether locating such information via the Internet constitutes proper means. Because of the nature of the Internet, and the relative unique (to trade secret law) problem presented in this Article, it is important to identify the accurate point in time at which the trade secret status of the information should be determined, and the party from whose perspective the relevant inquiry should be made. One possibility is to consider whether at the time the defendant (independent third party) came upon the information, it was a trade secret. Another option is to consider whether the information was trade secret before it was misappropriated by the wrongdoer. The former is a pre-misappropriation perspective, while the latter is a post-misappropriation perspective. The post-misappropriation perspective seems more consistent with trade secret law and the manner in which misappropriation cases are generally analyzed. To be sure, it is not the more favorable perspective for a trade secret owner, because it lends itself to a more ephemeral view of trade secrets, where despite a trade secret owners best efforts it may lose trade secret protection due to the intervening acts of a bad actor. Although the additional layer presented here, of an independent third party discovering information on the Internet from a misappropriator, is missing from the typical two-party trade secret case, there does not seem to be sufficient reason to diverge from the same analysis. In other words, in a situation, for instance, where an employee steals an employers trade secrets we would ask whether the information was trade secret at the time the employee took possession of it. Similarly, with an independent third party, it seems logical to consider whether at the time she discovered the information it was a trade secret. Put in criminal terminology, in order to be guilty of stealing a trade secret, the information must have been a trade secret at the time in which the defendant came in possession of it. Is a Posting on the Internet Generally Known? It is axiomatic that publicly available information cannot qualify for trade secret status. Given our understanding of the Internet, it has become an implicit assumption that any information posted on the Internet is public. [T]he act of posting constitutes publication to the world. If generally known is synonymous with public, then it might explain why many courts assume that a trade secret posted on the Internet has become generally known. However, exploration below the surface of these assumptions merely leads to further questions. For instance, does it matter if the information is known or knowable to competitors? Does public mean public accessibility or public publication? Does the obscurity of the website matter, or are all Internet postings equal? An attempt to answer these questions will be forthcoming after we further dissect the legal definition of a trade secret. The comments to the UTSA provide guidance in that they make clear that generally known does not necessarily mean known by the general public. Indeed, a trade secret can be generally known if it is known by at least one person who can obtain economic benefit from the information. It would therefore seem more precise to say that information cannot be a trade secret if it is known (delete generally) by the relevant people (i.e. those who may benefit from it). Accordingly, it is difficult to challenge the emergent conclusion that posting works to the Internet makes them generally known to the relevant people. Nevertheless, the case law demonstrates courts uneasiness with a bright line rule in that area, implying to this author the courts instinctive, albeit unstated, concern for fairness and the equitable nature of trade secret law. Even though that conclusion makes legal sense, from an equitable perspective, it seems unfair to a trade secret owner that illegal conduct by another could destroy a heretofore well preserved trade secret. One trial court, concerned about the incentives to wrongdoers, found that the mere posting of information on the Internet does not destroy a trade secret. According to the court, [t]o hold otherwise would do nothing less than encourage misappropriaters [sic] of trade secrets to post the fruits of their wrongdoing on the Internet as quickly as possible and as widely as possible thereby destroying a trade secret forever. Another court was willing to recognize that a publication on the Internet does not automatically terminate the existence of a trade secret, and considered the amount of time the information was posted and thus available for inspection. To that court, where the posting is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value the trade secret status is preserved. The precise measure of obscurity or transience required to protect the trade secret, however, is unsettled. In the Religious Technology Center cases, one of the courts noted that the fact that the information had been posted on the Internet for ten days, made it publicly available (destroying trade secret protection) because during those ten days they were potentially available to millions of Internet users. According to that court, [o]nce a trade secret is posted on the Internet, it is effectively part of the public domain, impossible to retrieve. In another one of those related cases, the court was wary of making the overly broad generalization that posting works to the Internet would destroy their trade secret status. Instead, the court recommended a review of the circumstances surrounding the posting and consideration of the interests of the trade secret owner, the policies favoring competition and the interests, including first amendment rights, of innocent third parties who acquire information off the Internet . . .  The model presented here espouses precisely that kind of review of the factual circumstances in an attempt to decide on a case by case basis whether, among other things, the generally known standard has been met. Is a Posting on the Internet Readily Ascertainable? It is interesting that the drafters of the UTSA chose a conjunctive between generally known and readily ascertainable. This necessarily implies that they have separate meaning. However, in practice courts seem to either struggle with the difficulty of determining the meaning of these labels, or more often simply do not consider the readily ascertainable prong as a separate factor from the generally known, and instead appear to treat the two as synonymous. Indeed, some states that have adopted the UTSA have chosen to remove readily ascertainable from their definition of trade secret. Even without this trend, under the circumstances presented here attempting to satisfy both generally known and readily ascertainable does appear redundant. Given the nature of the Internet the meanings may converge, and one could posit that every Internet posting is generally known and readily ascertainable, or is generally available and thus readily ascertainable. In the context of the Internet, treating the two concepts the same does not appear problematic. The very nature of the Internet, that it allows equal access to anyone with a computer, irrespective of certain traditional limitations to accessing information, like geography and cost, means that it makes information at least readily discoverable, if not ascertainable. Moreover, considering that the relevant population consists of those who could obtain economic benefit from the information, it is logical that these arguably motivated individuals would be the very persons surfing the Internet for information that would afford them a competitive advantage. Earlier in this section I posed certain questions which, by virtue of having dissected the definition of trade secret in the context of the Internet, may now be easier to answer. First, if courts continue to treat generally known and readily ascertainable interchangeably, then it does not seem to make a significant difference whether the information is known or knowable to competitors. The former would fall under the generally known category, and the latter, i.e., whether it is knowable would be captured under the readily ascertainable category. The practical reality may be that the information will be known by at least one person, typically the named defendant in the law suit. That defendant will likely argue that the information is not trade secret because the nature of the Internet is such that others have very likely accessed the information as well. This raises another interesting question as to whether it is the trade secret owners burden of production to show that others have not accessed the information, or the defendants to show the opposite. If posting information on the Internet makes it discoverable by and thus knowable to the relevant public, then the mere fact that the information is accessible to others may be sufficient to destroy secrecy even without proof of direct knowledge or access. Accordingly, even when the trade secret owner does not necessarily know whether any specific competitors or others have accessed the information it may nonetheless have lost trade secret protection. This approaches the bright line rule that publication in and of itself extinguishes the trade secret. In further response to the questions posed, as between public accessibility and public publication the inquiry is the same, and indeed, in the context of the Internet may be one and the same. A posting on the Internet, compared to, for instance, a disclosure on a piece of paper mailed from the United States to a library in rural Russia, is both a publication and a publicly accessible publication. Thus, to the extent, generally known and readily ascertainable are synonymous, then the mere publication of a trade secret on the Internet and its ensuing accessibility would destroy the secret. Finally, the many angles of the analysis seem to lead to the inexorable conclusion that a posting on the Internet would most likely defeat any trade secret protection. However, this may be true only if one accepts that all Internet postings are created equal. If, however, consideration of the obscurity of or accessibility to the website as well as timing and amount of exposure effect the generally known or readily ascertainable prongs, then perhaps a different conclusion might be possible. The factors presented later in this paper attempt to accommodate this possibility. Is it Misappropriation? Having proved that the information is trade secret, or likely to be trade secret, the second hurdle to a trade secret owner whose proprietary information has been discovered on the Internet, is proving misappropriation. This is difficult because on the surface the presence of the independent third party who has no duty to the trade secret owner to maintain his secret coupled with the public place discovery does not seem actionable. The view that any wrong to a trade secret owner occurs only at the time of the improper acquisition stems from an underlying construct of trade secret law that does not treat a trade secret as property. Rather, the presence of a confidential relationship or good faith is a necessary prerequisite, and it is that breach that triggers something akin to an enforceable property right in the trade secret. The key factors then appear to be whether the information was discovered by improper means and whether the third party should have known it was discovered by improper means. All three trade secret statutory frameworks include improper means in defining misappropriation. The relevant provision from the UTSA appears to make a third party liable for misappropriation if he or she knew or had reason to know that his or her knowledge of the trade secret was derived from one who used improper means to acquire it. . . This necessarily suggests a fact intensive determination into the third partys state of mind, her level of knowledge that the information was trade secret and that it was acquired by improper means. With respect to third parties, not only does the Rest. of Torts define misappropriation to include notice that the information was secret and was discovered by improper means or breach of a duty, but also with notice that the disclosure was made to him by mistake. This raises an interesting question as to whose mistake one should consider. Arguably the original misappropriator who published the information intended to do so, and thus did not do so by mistake. On the other hand, the trade secret owner could argue that it was a mistake because he or she did not intend to disclose the trade secret. It is also unclear from the Restatements definition whether notice of the fact that the information is secret is judged at the time the trade secret is discovered, or at a later time when the trade secret owner provides such notice to the defendant. The cases seem to suggest the former. It is worth considering whether the manner in which the third party obtained the information over the Internet is (or should be) improper means. The phrase certainly captures unlawful conduct, but it has also been interpreted to cover lawful conduct. For the purposes of this problem, the assumption is that the third party is not a hacker and has merely accessed the information through a search engine or through another site to which she has legitimate access. Accordingly, even given a broad interpretation of improper means, it would seem very unlikely that this kind of searching, in and of itself, would constitute improper means. The end result would appear to be that a defendant who does not know or have reason to know that the information is trade secret cannot be liable for misappropriation. As one court reasoned: Although the person who originally posted a trade secret on the Internet may be liable for trade secret misappropriation, the party who merely downloads Internet information cannot be liable for misappropriation because there is no misconduct involved in interacting with the Internet. Before going further it is noteworthy that for most courts whether there was misappropriation comes back to whether the information was trade secret. This is perfectly logical, given that one cannot misappropriate that which is not a trade secret. It is interesting, though, that no matter what the question asked, the response seems to return to the preliminary consideration of whether the information qualifies as a trade secret. This observation helps inform the model presented in this paper, since the preliminary consideration of the protectable status of the information is inescapable. However, once determined in the affirmative, it must be divorced from the other factors in order to avoid a tautology and permit a clearer, more distinct analysis of the issues. VI. Other Obstacles to Trade Secret Protection In addition to the hurdles within trade secret law to preserving the trade secret status of arguably public information, there are further barriers from other areas of law that may also be implicated by the analysis. Both constitutional law and patent law concerns lean toward prohibiting restrictions on the use of publicly available information. The applicable First Amendment, Fourth Amendment, and Patent Law doctrines are summarized below. First Amendment Defendants in these types of cases have asserted a First Amendment right to disclose allegedly trade secret information discovered on the Internet. [T]he First Amendment generally prohibits limitations, absent some extraordinary showing of governmental interest, on the publication of information already made public. When weighing the jealously guarded First Amendment rights against the commercial interests in protecting trade secrets, courts are often reluctant to enjoin disclosures of trade secrets. By implication, it would seem that if the First Amendment always trumps an owners right to protect against disclosure, then trade secret law would be powerless to enforce non-disclosure agreements or otherwise prevent disclosure of their secret information. Accordingly, the California Supreme Court has rejected a similar argument and made clear that injunctions against disclosure of information that qualifies as trade secret does not violate the First Amendment. Nonetheless, the obvious hole remains: where a trade secret has been disclosed (and thus no longer qualifies as a trade secret, under current trade secret law) the First Amendment could protect the disclosure. This returns full circle to the ever critical determination whether information, once posted on the Internet, loses its trade secret status. A positive response to that question leads to the likely conclusion that the information, for a whole host of reasons, including the First Amendment, can be used freely. Furthermore, in the absence of a fiduciary duty or confidentiality agreement not to publish trade secret information, one court has ruled that the First Amendment prevails. In Ford Motor Co. v. Lane, the defendant operated a website with news about Ford and its products. Lane received confidential Ford documents from an anonymous source, and initially agreed not to disclose most of the information. However, Lane eventually published some documents on his website relating to the quality of Fords products, thinking that the public had a right to know. He did so despite knowing that the documents were confidential. Ford sought a restraining order to prevent publication of the documents, claiming the documents were trade secrets. The court acknowledged (without any discussion) that Ford could show Lane had misappropriated its trade secrets, but reversed the order on First Amendment grounds, considering an injunction to prevent Lane from publishing trade secrets a prior restraint. Despite evidence that Lane had used the Internet and the confidential material to extort Ford, the court noted that Fords trade secrets were not more important than the documents in the Pentagon Papers case and not more inflammatory than the article in the Near case. Since a prior restraint was not justified in either of those cases, a prior restraint could not be justified in this case. Fourth Amendment Further constitutionally based obstacles to restricting use of publicly available information lies in the Fourth Amendment jurisprudence. Some scholars have explored analogies between Fourth Amendment privacy interests and the secrecy requirement of trade secret law. As specifically related to the issues presented in this paper, however, a rule that trade secrets posted on the Internet lose their protection is consistent with and analogous to court interpretation of Fourth Amendment privacy interests. In particular, when a person unlawfully invades ones zone of privacy to steal private, incriminating information and then reveals that information to the police or the public, courts have held that this conduct does not violate the Fourth Amendment. The fact that trade secret law similarly provides incentives to break the law, is thus not a unique concept. Patent Law Any attempts to restrict use of information found in the public domain are outside the purview of trade secret law, and instead are covered by patent law. It is patent law that governs property rights in publicly known information. The underlying premise is that all ideas in general circulation [is] dedicated to the common good unless they are protected by a valid patent. Accordingly, attempts to use state trade secret law to restrict use of information in the public domain are preempted by patent law. Patent law further lends support to the idea that the intervening illegal act of a misappropriator could negatively affect the rights of the owner. The two cases discussed below make clear that even when a misappropriator steals an invention while it is a trade secret, and then unbeknownst to the inventor, puts it on sale or uses it publicly one year before the inventor files a patent application on the invention, that use or sale prevents the inventor from obtaining a patent. In Lorenz v. Colgate-Palmolive-Peet Co., plaintiff Lorenz sued defendant Colgate for a declaration that Lorenzs soap manufacture patent was valid and Colgates was void. Lorenz alleged that he disclosed the invention to Colgate, and that disclosure gave Lorenz priority over the invention. Colgate asserted that its use of the patented process more than a year before Lorenz filed the patent application rendered Lorenzs patent invalid under prior public use. Lorenz in turn argued that prior use does not apply when an invention is pirated by another person. However, the court held that the prior public use statute had no exceptions, and any intervening public use bars the inventor from obtaining a patent. The court stated that the policy behind the statute was to protect the publics interest, and therefore it was up to the inventor to protect his discovery from being used. In Evans Cooling Systems, Inc. v. General Motors, plaintiff Evans filed suit against defendant General Motors (GM) for infringing Evans patent on engine cooling. GM moved to declare the patent invalid on the basis that GM sold cars with the invention before Evans sought a patent, but Evans asserted that GM stole his engine cooling invention and allowed dealers to sell vehicles containing the invention, and GM therefore should not be able to invalidate the patent. After reviewing prior case law, the court concluded that since the public use by the dealers of the invention was innocent, the public bar use should apply. VII. Assistance From attorney client privilege Cases Despite the seemingly uphill battle in trying to preserve the trade secret status of information disclosed on the Internet, one area of law provides some hope, even if only by analogy. Cases involving inadvertent disclosure of materials protected by the attorney client privilege are in some ways analogous to the trade secret problem identified here. As the summary below reveals, the courts tend to protect the privileged status of the information especially where the necessary precautions were taken and the disclosure occurred inadvertently or through misconduct. Thus, even where confidentiality of the materials may have been lost, the privilege can be preserved. Although there is no direct parallel to trade secret law in that once secrecy is lost, the trade secret status is also lost, the model presented here attempts to capture the spirit of those cases by recognizing that there may be certain exceptional circumstances where trade secret status may be retained. In re Grand Jury Proceedings Involving Berkley and Co In In re Grand Jury Proceedings Involving Berkley and Co., Berkley moved to suppress some evidence stolen by a former employee from a grand jury, asserting it was protected by attorney-client privilege. The court initially held that attorney-client privilege historically does not apply to stolen or lost documents as a matter of law. On motion to reconsider, the court noted that the more modern approach is that when attorneys and clients take reasonable precautions to ensure confidentiality, the attorney-client privilege is not lost. Since the former Berkley employee stole the documents, the court held that the theft is analogous to an attorney disclosing privileged information in bad faith, which does not result in a loss of privileged status under modern precedent. Resolution Trust Corp. v. Clayton J. Dean In this case the Washington Post published excerpts from an Authority to Sue Memorandum prepared by plaintiff Resolution Trust Corp.s(RTC) counsel. When defendant Symington moved to order discovery of the memo, RTC asserted the attorney-client privilege. Symington argued that the privilege was waived when it was leaked to the newspaper unless RTC could prove it was stolen. Citing Berkley, the court rejected Symingtons argument, and noted that disclosure of the memo was a criminal act. The court held that since RTC proved they took precautions to ensure the memos confidentiality, they established that the release of the memo was not voluntary and that they did not waive the attorney-client privilege of the memo. C.P. Smith v. Armour Pharmaceuticals In C.P. Smith v. Armour Pharm., defendant Miles, Inc. inadvertently included a document from in-house counsel in a document production given to plaintiff Smith. When Smiths lawyer subsequently leaked the document to the press, and accounts of the document appeared in newspapers from Florida to Alaska, Miles filed a protective order, asserting attorney-client privilege to the documents. The court noted that wide circulation of a document is not, by itself, grounds for revoking attorney-client privilege.  The court found a distinction between the document losing its confidentiality and losing its privilege, stating that a document can retain its privilege even if it is no longer confidential. Even though the document was no longer confidential, since Miles did not waive the attorney-client privilege, the document still retained the privilege. United States ex rel. Jerry Mayman v. Martin Marietta The government sought access to attorney-client privileged documents in this case via a discovery request, asserting that defendant Martin Marietta waived the privilege by allowing a former employee to possess a draft of the document. The court found that whoever gave the privileged documents to the former employee was not authorized to have them, the former employee was not authorized to keep them and made false statements to keep them. Since the confidentiality of the documents was breached due to the unauthorized actions of a former employee, the court refused to conclude reasonable precautions were not taken, and held the privilege was not waived. VIII. The Sequential Preservation Model The complexity of the problem presented here lies not necessarily in the analytical framework of trade secret law available for determining whether information is deserving of trade secret protection. Rather, it is the recognition of the injustice that could result from strict application of the law, and the ensuing incentives for illegal conduct, that is disturbing. Given the equity rationale underlying trade secret law, these concerns compel an exploration for a more just result. There is an underlying recognition that perhaps something more than a bright line rule may be appropriate in some cases. With that in mind, I propose what I will coin a sequential preservation model below as a tool to achieve a fairer result in those limited cases where the injustice would otherwise be especially grave. When properly applied, the factors should provide relief in extraordinary circumstances. For the vast majority of cases, however, the default rule under the current trade secret framework should apply. Publication of trade secrets via the Internet will cause a loss of trade secret protection. This may appear harsh in some circumstances, but trade secret owners have a duty to be vigilant, and having chosen this method of intellectual property protection, they must be ready to face the possible disadvantages of the regime. A prudent approach to addressing these types of cases requires deliberate and careful consideration of the many issues raised in the article, including the rights of a trade secret owner to maintain the protection of his or her valued information versus the right of the public (and competitors) to use information found in the public domain. The conduct leading to the disclosure does not necessarily change the analysis presented in this paper. Thus, disclosure which occurs as a result of an inadvertent disclosure by the trade secret owner or one of his/her agents, is treated in the same manner as a disclosure resulting from the criminal or other illegal conduct by an employee or third person. Nonetheless, the model is informed by the various legal frameworks and theories discussed thus far in this paper. Threshold Issue Establish Trade Secret Status As a threshold matter, preliminary consideration must be given to determine whether the trade secret owner can reasonably establish that the information in question was entitled to trade secret protection before it was misappropriated. In particular, the most critical part of that inquiry should be whether the trade secret owner took reasonable steps to preserve the secrecy of the information. This is consistent with the law and practice already required in trade secret misappropriation cases, as the trade secret owner bears the burden of establishing the trade secret status of the information. If the court determines that the trade secret owner is not likely to succeed in proving that the information was trade secret, then the bright line rule of trade secret disclosure should apply and the inquiry need not proceed any further. That is, the trade secret owner is not entitled to enjoin use of the alleged trade secret information disclosed on the Internet. As a practical matter, this is reasonable in light of the fact that failure to prove trade secret status is fatal to any claim for misappropriation, and is especially so where, as here, the action would involve an independent third party who accessed the information from the public domain. If a court determines that the information was deserving of trade secret status before it was allegedly misappropriated, then the next step is to determine via the factors below whether, despite the disclosure, it has nonetheless retained its trade secret status. The choice to phrase the inquiry in terms of retention of status, rather than loss of status is deliberate, as it underscores the underlying expectation that retention of trade secret status after disclosure is the exception, not the rule. Accordingly, it is expected that with rigorous application and weighing of these factors, only a very small number of cases would qualify for retention status. The Three Factors Of the three factors identified below, the first two focus on the trade secret owner and the trade secret. This is reasonable given the ever present burden on trade secret owners to maintain the secrecy of any protectable information and thus establish its trade secret status. In light of the equitable considerations underlying trade secret law, however, it also seems fair to introduce a third factor which considers the recipients good faith. This factor will specifically answer whether the independent third party has misappropriated the trade secret and therefore should be enjoined. This inquiry is entirely consistent with the definition of misappropriation which includes consideration of the recipients knowledge that the information is anothers trade secret. The factors ought to be evaluated sequentially, at least to the extent that the first two must be considered before the third. Time and Action This first factor would require consideration of the amount of time that the information was exposed on the Internet, and the promptness of any action by the trade secret owner to have the information removed. In sum, more favorable consideration will be given to (a) information that has been posted for a very short period of time (24-48 hours) and (b) where the owner discovered the publication and took action immediately (within 24-48 hours) to have it removed. By analogy, given the importance of trade secrets to a business, this factor expects the trade secret owner to treat discovery of a disclosure similar to what one would expect of a parent who discovers a child may be missing. In light of the threat to trade secrets posed by the Internet, trade secret owners have an obligation to monitor the Internet for potential wrongful disclosures. Were there any question of the existence of this obligation, the examination of the issues in this Article leaves no doubt that such must be the case. In deciding to choose trade secret protection over other options to protect intellectual property (e.g. patent law) a trade secret owner undertakes this responsibility as part of the bundle of disadvantages associated with trade secret protection. The amount of time of exposure and promptness of action which will be considered sufficient will depend on the circumstances. However, the rate at which information moves through the Internet, dictates that the promptness measure be correspondingly rapid. Information that has been posted for more than approximately twenty-four to forty-eight hours is much more likely to have become generally known and thus not meet the test for trade secret protection. A trade secret owner who discovers the information must respond immediately and can show that it took prompt action by, for instance, filing a lawsuit, seeking an emergency temporary injunction, contacting the Internet service provider to have the information removed, or sending a cease and desist letter. While this is not an exclusive list, the goal is separate those who have slept on their rights upon discovering the potentially fatal disclosure, from those who have acted consistent with the danger that has befallen their business. This requirement also implicitly provides corroborative evidence of the true value of the trade secret the business. Extent of Disclosure The second factor considers the extent of the disclosure. This includes not only how much of the trade secret was disclosed, but is also related to the first factor in trying to ascertain the nature of the site on which the information was posted (public availability). It attempts to address the necessary element, whether the secret became generally known or knowable. It further permits exploration of the premise that [p]ublication on the Internet does not necessarily destroy the secret if the publication is sufficiently obscure or transient or otherwise limited so that it does not become generally known to the relevant people, i.e., potential competitors or other persons to whom the information would have some economic value. This factor evaluates the specific site on which the information was posted. A more prominent disclosure on a highly visited web page might require more prompt action, and greater concern, than a disclosure in an obscure, members-only chat room, with limited membership. If the information was published on a network with controlled access to a specific membership, particularly where the membership is a small, well-defined, and finite group, weighs in favor of the trade secret owner. If, however, the group consists of precisely the relevant people who would most benefit from the information, then it may be more difficult to argue that the trade secret has not become generally known. One further advantage to a closed network is that their identities are known, and it might be easier to obtain injunctive relief against them. The amount of secret information that was disclosed may also be probative of whether the information deserves to retain its trade secret status. In circumstances where only portions of the trade secret were disclosed, and the remaining undisclosed portions continue to maintain their competitive value to the trade secret owner, then a court could find that the trade secret protection has not been completely lost. This examination of the extent of the disclosure is supported by non-Internet related cases that require something more than mere public accessibility of the trade secret, namely publication, before finding loss of the protection. For instance, in cases addressing unsealed filing of trade secret information in public court records, evidence of further publication of the trade secret is required to destroy trade secret protection. Admittedly, the nature of the Internet is such that, unlike a public court file in a court house, publication to the relevant public can be virtually instantaneous, and, as such, there is a significantly smaller window of opportunity for the trade secret owner to protect the secret status of the information. Nonetheless, this factor allows for a thoughtful assessment of the extent of exposure by a court, rather than a presumption that the disclosure (particularly in isolation) destroyed the secret. Recipients Reason to Know the Information was Trade Secret This final factor turns from the trade secret owners actions to the recipients state of mind and is an important part of the definition of misappropriation. Related to the first factor, if the trade secret owner provided notice to the recipient in a timely fashion that the information was trade secret, then the acquisition by improper means may be a stronger case. Furthermore, if the evidence independently suggests that the recipient knew or should have known the trade secret status of the information then it will weigh in favor of the trade secret owner. Under the UTSA one is liable for misappropriation if he obtains information from a third person and then discloses or uses it knowing, or possessing information from which he should know, at the time of disclosure or use that the information is a trade secret and that it had been misappropriated by the third person. The defendants knowledge that the information was trade secret is also evidence of misappropriation under the Restatement of Torts as well. Circumstantial evidence can be weighed to determine the likelihood that the defendant knew the acquisition was wrongful, and a defendant cannot shield himself by studious ignorance of pertinent warning facts. Defendants constructive notice that the information was trade secret is sufficient. The Restatements definition of notice provides guidance: One has notice of facts . . . when he knows of them or when he should know of them . . . . He should know of them if, from the information which he has, a reasonable man would infer the facts in question, or if, under the circumstances, a reasonable man would be put on inquiry and an inquiry pursued with reasonable intelligence and diligence would disclose the facts. Accordingly, if the evidence suggests that a reasonable person would have been on notice that the information received was the wrongfully disclosed trade secret of another, then the defendant should be liable for misappropriation. Even though the burden of proof remains with the trade secret owner to prove defendants guilty state of mind, it will be important for the defendant to marshal facts to effectively prove a negative in defense; that she did not have reason to know the information was trade secret. In doing so, she may rely on the argument that the trade secret, through its posting, had become generally available. In expressing that position, it is important to try to avoid the tautological reasoning that has befallen some courts, i.e. whether the information was trade secret in the first place. Thus, the line between the defendants state of mind and the generally availability of the information, may become blurred in the analysis. As one court noted, for instance: In a case that receives widespread publicity, just about anyone who becomes aware of the contested information would also know that it was allegedly created by improper means. . . in such a case the general public could theoretically be liable for misappropriation simply by disclosing it to someone else. This is not what trade secret law is designed to do. One value of this model and the factors presented here is that the question whether information qualifies as a trade secret, would have already been answered positively as a threshold matter. Thus, at this point in the model, an analysis of the facts supporting the defendants state of mind would be separate from that question. Evidence of the defendants state of mind relative to the trade secret status of the information will also depend on the particular circumstances. In one illustrative case, where the defendant found Microsofts trade secret source code over the Internet and tried to sell it, the court was persuaded by such evidence as (a) the defendants describing the code as jacked, (b) the defendant indicating that others would have to look hard to find it elsewhere, (c) the defendant being on notice that Microsoft had not publicly released the code, and (d) the defendants offering the code for sale and successfully selling it because of its relative obscurity. Evidence of the trade secret owners proactive steps or prior relationship with the defendant may also bear on the defendants bad faith or culpable knowledge. Materials which are clearly labeled and stamped indicating that they are confidential, proprietary or trade secret will be helpful. Evidence that this particular defendant has previously tried, legitimately or illegitimately, to obtain the trade secret from the owner may also be relevant. Attempts to extort benefits from the trade secret owner in exchange for returning the materials would also signal culpability. Finally, evidence that the defendant knew the trade secrets were obtained in violation of a confidentiality agreement, license agreement, or a fiduciary obligation weighs in favor of the plaintiff. If someone other than the original misappropriator posted the information (and is the first to do so), then she, as the publisher, ought to be in a worse position than the independent third party who discovers the posting. That person or entity is likely to fall within a conspiracy type analysis, for obtaining the secret from the misappropriator with knowledge of the wrongful acquisition. Having received the information directly from the original misappropriator, or an associate/agent, and then deciding to post it carries, at the very least, a taint of misappropriation. Posting the information does not purge that taint, and precludes the poster, like the original misappropriator, from claiming that the information has now become generally known and is not a trade secret. IX. Theoretical Summary of the Sequential Preservation Model To more clearly illustrate the connection between the components of the model and their theoretical underpinnings, I present the summary below. A court faced with an Internet disclosure problem can utilize the model (in conjunction with application of the preliminary injunction standard) to determine whether to enjoin an independent third party. One value of this process is that it provides for deliberate consideration of the trade secret law requirements, avoiding automatic and potentially erroneous assumptions on a case by case basis. A. Was the disclosed information deserving of trade secret protection before it was posted on the Internet? This is the threshold determination. If no, then there is no need to apply the model: there cannot be misappropriation and an injunction cannot issue. If yes, then proceed to the rest of the model. Did the information retain its trade secret status despite the Internet posting? To answer this question, apply the first two factors to the facts of the case. If the answer is no, do not proceed further and end the analysis. There cannot be misappropriation or an injunction for that which is not a trade secret. If the answer is yes, then proceed to the final step. Was there misappropriation by the defendant independent third party? To answer this question, apply the third factor regarding the defendants state of mind. If the answer is yes, then an injunction should issue; otherwise, there is no trade secret liability and an injunction is not appropriate. X. Remedies A court, finding misappropriation after hearing the facts and weighing the factors presented above should issue an injunction. The scope of that injunction will vary depending on the particular circumstances. Removal of the information from the web site (if it has not already occurred) would certainly be necessary. A court could further enjoin the recipient from using the information, at least for a certain period of time. While this does not erase the information from the hands of a competitor, it could at least mitigate some of the damage by delaying use of the information in a manner that would allow the defendant to compete unfairly with the trade secret owner. The injunction should also prohibit the defendant, and his/her agents, from further disseminating the information. A more difficult problem for the trade secret owner, however, would be that other members of the public, other than those named in the suit, could not be enjoined from using the information. For the many reasons discussed earlier permitting use of information in the public domain, as well as a courts likely lack of jurisdiction to enjoin non-parties in a law suit, the trade secret owners prospects for containing use of the information are bleak. A trade secret owner can pursue a misappropriation claim against the original misappropriator (if known), and may also have claims against those who aid and abetted the misappropriation. Thus, to the extent the information was posted by someone other than the original misappropriator, that person may also be liable. Even if the misappropriator may have succeeded in destroying the trade secret status of the information vis a vis others, trade secret law does not permit him or her to benefit from use of the information. Thus, for instance, such a person is not entitled to claim immunity on the basis that the information is no longer secret. Assuming, as is often the case, that the misappropriator does not have deep pockets, however, a victory against him may be hollow and unsatisfying for a trade secret owner who now suffers the permanent loss of its trade secret. Given the current status of the law, it becomes clear that a trade secret owners best and most effective weapon is protection of the trade secret information to prevent disclosure in the first place. This requires absolute vigilance and knowledge of potential threats, among the most dangerous of these being the Internet. In the event that despite best efforts a disclosure is made, prompt action in addressing the situation is critical. Since trade secret owners have the legal burden of proving the trade secret status of their information when they seek to enforce protection, it is incumbent upon them to be mindful of that burden long before litigation arises. Otherwise, once the milk has been spilled, it may be too late. XI. Conclusion At the outset of this Article I presented the hypothetical involving The Coca-Cola Company. Where a trade secret, such as the ingredients to Coca-Cola, is stolen from its owner and posted on the Internet, the default rule would be that it becomes a free for all. By virtue of the fact that it has been posted, it becomes public, and consequently loses its trade secret protection. The ensuing result is that independent third parties, including competitors, are entitled to use it, and the trade secret owner, despite years of laudable efforts to maintain the secret, suffers a fatal loss at the hands of a wrongdoer. The apparent injustice in that conclusion does not go unnoticed. Given that trade secret law is intended to regulate the moral and ethical pulse of competitive commercial behavior, this Article set out to explore the problem presented by trade secret Internet disclosures, and to identify whether at least in some circumstances it may be possible to retain trade secret status after a disclosure. Review of the various legal theories supports the general rule that trade secret status is lost upon disclosure. Nevertheless, considering the equitable and doctrinal considerations underlying trade secret law, and drawing from analogous attorney client privilege cases, there is support for an argument that trade secret status may be saved in some circumstances. Accordingly, I present a model, comprised of three factors, which may be used as a guide to decide which cases qualify for this exception. The model is drawn from and supported by the various legal issues surrounding the problem. While, in reality, it may only save a small number of cases from the general rule, its value lies in its use as an instrument that may be applied by courts to yield consistent results. It provides an avenue to work within the existing constraints of trade secret law to hopefully achieve more just results in compelling cases. It illustrates that [t]he Internet, as a mode of communication and a system of information delivery is new, but the rules governing the protection of property rights, and how that protection may be enforced under the new technology, need not be. ( Assistant Professor of Law, University of Florida, Levin College of Law. I would like to thank Luke Napodano and Dana Sellers for their research assistance.  Bruce T. Atkins, Note, Trading Secrets in the Information Age: Can Trade Secret Law Survive the Itnernet?, 1996 U. Ill. L. Rev. 1151 fn. 23 (1996) (citations omitted).  This hypothetical was created by the author. Ironically, it almost came to life before this Article was completed. On July 5, 2006 the Associated Press reported that three people had been charged with stealing confidential information from The Coca-Cola Co. and trying to sell it to PepsiCo. That case, however, did not involve Internet disclosure. See Harry R. Weber, Three Charged With Stealing Coca-Cola Secrets,  HYPERLINK "http://www.msnbc.msn.com/id/13722797/print/1/displaymode/1098" http://www.msnbc.msn.com/id/13722797/print/1/displaymode/1098, last visited 7/6/06.  See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1254 (D.C. Cir. 2005)(holding that FDA could be liable for misappropriation of trade secrets where it posted plaintiffs trade secrets on its website for five months).  Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 753-54 (E.D. Mich. 1999).  Religious Technology Ctr. v. Netcom On-Line Communications Servs., Inc.., 923 F. Supp. 1231, 1256 (N.D. Cal. 1995).  See, e.g., Elizabeth A. Rowe, 7 Tul. J. Technology. & Intell. Prop. 167, 176-77 (2005).  See, e.g., Bruce T. Atkins, Note, Trading Secrets in the Information Age: Can Trade Secret Law Survive the Internet?, 1996 U. Ill. L. Rev. 1151, 1182-83 (1996); Matthew R. Millikin, Note:  HYPERLINK "http://WWW.Misappropriation.com" WWW.Misappropriation.com: Protecting Trade Secrets After Mass Dissemination on the Internet, 78 Wash. U. L. Q. 931 (2000); Ryan Lambrecht, Note: Trade Secrets and the Internet: What Remedies Exist for Disclosure in the Information Age?, 18 Rev. Litig. 317 (1999); Daniel W. Park, Trade Secrets, The First Amendment, and Patent Law: A Collision on the Information Superhighway, 10 Stan. J. L. Bus. & Fin. 46, 47 (2004); Victoria A. Cundiff, Trade Secrets and The Internet: Preventing The Internet From Being An Instrument of Destruction, 842 PLI/PAT 347, 355-59 (2005).  Portions of this background material are derived from an earlier piece by this author: Elizabeth A. Rowe, 7 Tul. J. Technology. & Intell. Prop. 167, 191-96 (2005).  See Michael A. Epstein, Epstein on Intellectual Property, (4th ed.), 2005 Supplement, 1.02 at 1-4.  See Restatement of Unfair Competition 39, Reporters Note (1995).  See Michael A. Epstein, Epstein on Intellectual Property, (4th ed.), 2005 Supplement, 1.02 at 1-4  Restatement (First) of Torts, 757, cmt. (b) (1939),  Id.  See, e.g.,  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=8bff8089efde5e6f33ecc991bf098365&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bRestat%203d%20of%20Unfair%20Competition%2c%20%a7%2039%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=2&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b796%20F.2d%201076%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAW&_md5=068da3c850137e7b384feb140eb10126" \t "_parent" Religious Technology Center v. Wollersheim, 796 F.2d 1076 (9th Cir.1986), cert. denied  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=8bff8089efde5e6f33ecc991bf098365&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bRestat%203d%20of%20Unfair%20Competition%2c%20%a7%2039%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=3&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b479%20U.S.%201103%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAW&_md5=378e1d24eb3bf389462471b3c11b24c9" \t "_parent" 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987);  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=8bff8089efde5e6f33ecc991bf098365&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bRestat%203d%20of%20Unfair%20Competition%2c%20%a7%2039%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b87%20Md.%20App.%20770%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAW&_md5=93f76a8dc2b8b1b4ece9587c558b157c" \t "_parent" Optic Graphics, Inc. v. Agee, 87 Md.App. 770, 591 A.2d 578 (1991);  HYPERLINK "http://www.lexis.com/research/buttonTFLink?_m=8bff8089efde5e6f33ecc991bf098365&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5bRestat%203d%20of%20Unfair%20Competition%2c%20%a7%2039%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=5&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b147%20Wis.%202d%20842%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAW&_md5=0648b87db0acc588cb18d164295864fd" \t "_parent" Minuteman, Inc. v. Alexander, 147 Wis.2d 842, 434 N.W.2d 773 (1989).  Examples of safeguards typically employed by companies include (a) maintaining electronic card systems that limit access to and within the facilities; (b) limiting access to confidential information to employees on a need-to-know basis; (c) requiring the use of pass codes for computer access to confidential information; (d) restricting access to visitors by requiring visitors to sign in and war identification badges; and (e) distributing hard copies of confidential information by means of tailored distribution lists to select employees on a need-to-know basis.  Restatement (First) of Torts 757, cmt. b (1939).  See Gale R. Peterson, Trade Secret Protection In An Information Age 2.2(A), at 2-23 (1997).  See Johanna L. Edelstein, Note, Intellectual Slavery?: The Doctrine of Inevitable Disclosure of Trade Secrets, 26 Golden Gate U. L. Rev. 717, 724 (1996).  Uniform Trade Secrets Act, Prefatory Note, 14 U.L.A. at 434.  Seven states adopted the original 1979 version of the UTSA. They are Arkansas, California, Connecticut, Indiana, Louisiana, Rhode Island and Washington. Thirty-eight other states adopted the UTSA with the 1985 amendments. They are Alabama, Alaska, Arizona, Colorado, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, West Virginia and Wisconsin. See Uniform Law Commissioners, A Few Facts About .... The Uniform Trade Secrets Act, at  HYPERLINK "http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-utsa.asp" http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-utsa.asp (last visited Aug. 30, 2004)  The UTSA is currently under consideration by the legislature in Massachusetts, New York, and U.S. Virgin Islands. Id. It was just recently enacted in 2003 by the Pennsylvania legislature. See  HYPERLINK "http://www.legis.state.pa.us/WU01/LI/BI/BT/2003/0/SB0152P1324.HTM" http://www.legis.state.pa.us/WU01/LI/BI/BT/2003/0/SB0152P1324.HTM (last visited Aug. 30, 2004).  Uniform Trade Secrets Act 1, 14 U.L.A. 437 (1990). The UTSA requires only reasonable efforts, not all conceivable efforts, to protect the confidentiality of trade secrets. See Surgidev Corp. v. Eye Tech., Inc., 828 F.2d 452, 454 (8th Cir. 1987). See also Religious Tech. Ctr. V. Netcom On-Line Communication Serv. Inc., 923 F. Supp. 1231, 1244 (N.D. Cal. 1995) (church made reasonable efforts under UTSA to protect secrecy of religious documents, including: use of locked cabinets and safes; logging in identification of materials; electronic sensors; alarms; photo identifications; security personnel; and confidentiality agreements for all given access to materials).  McFarland, 1998 WL 269223 at *3.  See Tyson, No. E-99-1322 (Ark. Chan. Ct. Jan. 4, 2000) (finding Tysons business information concerning production, marketing strategies, pricing programs and contract terms to be protectable trade secrets under UTSA); PepsiCo v. Redmond, 54 F.3d 1262, 1268 (7th Cir. 1995) (finding strategic financial and marketing information protected trade secrets under UTSA).  A negative trade secret is the knowledge of what not to do or what doesnt work, a lesson learned from a certain process or research and development effort that failed. See James Pooley, Trade Secrets 4.02 [3] (1997).  UTSA 1 (defining misappropriation); see Roger M. Milgrim, Milgrim on Trade Secrets 1.01[2] (1997) (discussing the UTSA).  See U.T.S.A. 2(a), 14 U.L.A. 449 (1990). Section 2 states in full that: (a) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation. (b) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited ... . (c) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order. Id.  Stephen L. Sheinfeld and Jennifer M. Chow, Protecting Employer Secrets and the Doctrine of Inevitable Disclosure, 600 PLI/Lit 367, 381 (Mar. 1999); see, e.g. Carolina Chem. Equip. Co. v. Muckenfuss, 322 S.C. 289, 471 S.E.2d 721, 724 (Ct. App. 1996)(finding no misappropriation under UTSA since information was not a trade secret under common law definition of Restatement).  Restatement (Third) of Unfair Competition 39-45 (1995).  Although the precise reason for this change is not explicitly stated, perhaps it is because trade secret law is inextricably tied to the values of our competitive marketplace. As the authors note, the law of trade secrets . . . reflects the accommodation of numerous interests, including the trade secret owner's claim to protection against the defendant's bad faith or improper conduct, the right of competitors and others to exploit information and skills in the public domain, and the interest of the public in encouraging innovation and in securing the benefits of vigorous competition.  HYPERLINK "http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=Restat+3d+of+Unfair+Competition%2C+%A7+39" \o "Clicking this link retrieves the full text document in another window" \t "x" Restatement (Third) of Unfair Competition 39 cmt. b (1995). See James J. Mulcahy and Joy M. Tassin, Is PepsiCo the Choice of the Next Generation: The Inevitable Disclosure Doctrine and its Place in New York Jurisprudence, 21 HOFSTRA LAB. & EMP. L.J. 233 (2003).  For instance, unfair competition claims involving trade secrets often mirror trade secret misappropriation claims. See, e.g., IBM v. Seagate, 1991 U.S. Dist. LEXIS 20406, at *11 (D. Minn. 1991; GlobeSpan, Inc. v. ONeill, 151 F. Supp. 2d 1229 (D. Cal. 2001).  See Restatement (Third) of Unfair Competition 39 (1995).  Restatement (Third) of Unfair Competition 39 cmt. b (1995).  Id.  Restatement of Torts, 757 (1939).  Id.; see also Uniform Trade Secret Act, prefatory note, 14 U.L.A. 434 (1985) (noting that when then UTSA was drafted the six factors provided under section 757 were the most widely accepted rules of trade secret law).  James J. Mulcahy and Joy M. Tassin, Is PepsiCo the Choice of the Next Generation: The Inevitable Disclosure Doctrine and its Place in New York Jurisprudence, 21 HOFSTRA LAB. & EMP. L.J. 233 (2003).  Restatement (First) of Torts 757, cmt. a (1939).  Restatement (First) of Torts 757, cmt. a. (1939).  Restatement (First) of Torts 757 (1939).  Restatement of Torts 757 cmt. e (1939).  The UTSA defines "misappropriation," as: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who: (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew, or had reason to know, that his knowledge of the trade secret was: (I) derived from, or through, a person who had utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or, (III) derived from, or through, a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Uniform Trade Secrets Act 2(a), 14 U.L.A. 449.  Uniform Trade Secrets Act 1, 14 U.L.A. 449.  Id. 1(2).  Uniform Trade Secrets Act 1 (1985).  Restatement (Third) of Unfair Competition 40 (1995). Under section 40, Appropriation of Trade Secrets: One is subject to liability for the appropriation of another's trade secret if: (a) the actor acquires by means that are improper under the rule stated in 43 information that the actor knows or has reason to know is the other's trade secret; or (b) the actor uses or discloses the other's trade secret without the other's consent and, at the time of the use or disclosure, (1) the actor knows or has reason to know that the information is a trade secret that the actor acquired under circumstances creating a duty of confidence owed by the actor to the other under the rule stated in 41; or (2) the actor knows or has reason to know that the information is a trade secret that the actor acquired by means that are improper under the rule stated in 43; or (3) the actor knows or has reason to know that the information is a trade secret that the actor acquired from or through a person who acquired it by means that are improper under the rule stated in 43 or whose disclosure of the trade secret constituted a breach of a duty of confidence owed to the other under the rule stated in 41; or (4) the actor knows or has reason to know that the information is a trade secret that the actor acquired through an accident or mistake, unless the acquisition was the result of the other's failure to take reasonable precautions to maintain the secrecy of the information. Id.  Id. at cmt. b.  18 U.S.C. 1831-39 (1996).  Id. at 1832(a).  Id. at 1831(a).  Id. at 1839.  Id. at 1832 (a).  Id. at 1832(a)(2).  See Junker v. Plummer, 67 N.E.2d 667, 670 (Mass. 1946) (The owner of a trade secret, in contradistinction to the owner of a patent, has no such right in the idea as will enable him to exclude others from using it. Thus if one acquires a secret by honest means he may use it. (citations omitted)).  **  See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 496-97 (1974).  See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974).  See, e.g., Chicago Lock Co. v. Fanberg, 676 F.2d 400 (9th Cir. 1982) (locksmiths may reverse engineer codes and then provide them for compilation); Smith v. Dravo Corp., 203 F.2d 369, 375 (7th Cir. 1953) (It is unquestionably lawful for a person to gain possession, through proper means, of his competitors product and, through inspection and analysis, create a duplicate, unless, of course the item, is patented.); Unif. Trade Secrets Act, 14 U.L.A. 438 (1990) (Commissioners Comment).  See Restatement (First) of Torts 757, cmt. a. (1939).  See Fisher Stoves, Inc. v. All Nighter Stove Works, Inc., 626 F.2d 193, 196 (1st Cir. 1980) (even a bona fide trade secret is not protected against discovery by fair means, including accidental disclosure).  See Lockridge v. Tweco Products, Inc., 209 Kan. 389, 393 (1972) (Once the secret is published to the whole world, . . . it loses its protected status and becomes available to others for use and copying without fear of legal reprisal from the original possessor.)  See, e.g., Kewanee Oil v. Bicron, 416 U.S. 470, 481-82 (1974); Melvin F. Jager, Trade Secrets Law 1.05, at 1-15 (1997) {GET *}; Restatement (Third) of Unfair Competition 39 cmt. A (1995).  Cross Reference Cite *  See, e.g., Smith v. Snap-On Tools Corp., 833 F.2d 578, 579 (5th Cir. 1987) (The essence of the tort of trade secret misappropriation is the inequitable use of the secret); see also Northern Petrochemical Co. v. Tomlinson, 484 F.2d 1057 (7th Cir. 1973).  * *  Computer and Internet Use at Work in 2003, United States Department of Labor,  HYPERLINK "http://www.bls.gov/news.release/ciuaw.nr0.htm" http://www.bls.gov/news.release/ciuaw.nr0.htm last visited on *________.  Id.  See Daniel W. Park, Trade Secrets, The First Amendment, and Patent Law: A Collision on the Information Superhighway, 10 Stan. J. L. Bus. & Fin. 46, 47 (2004).  See Xuan-Thao N. Nguyen and Jeffrey A. Maine, Taxing the New Intellectual Property Right, 56 Hastings L.J. 1, 4 (2004).  See generally Andrea m. Matwyshyn, Symposium: Personal Jurisdiction In The Internet Age:Of Nodes And Power Laws: A Network Theory Approach To Internet Jurisdiction Through Data Privacy, 98 Nw. U. L. Rev. 493, 499 (2004) (discussing trends in the Internet economy).  OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *13 (Cal. App. May 26, 2006).  See id. at *13-14.  908 F. Supp. 1362 (E.D. Va. 1995).  Id. at 1364.  The Religious Technology Center is a non-profit corporation formed by the Church of Scientology to protect it its religious course materials. See Religious Technology Center v. Netcom, 823 F. Supp. 1231, 1239 (N.D. Cal. 1995).  Id.  Id. at 1368.  Id.  Id. at 1365.  Religious Technology Center v. Netcom, 823 F. Supp. 1231, 1239 (N.D. Cal. 1995).  Id. at 1256.  Id. at 1256-57.  Religious technology Center v. Netcom, 1997 U.S. Dist. LEXIS 23572, *24 (N.D. Cal. 1997).  Id. at *26.  Id. at *40-*41.  Id. at *41.  Id. at *42.  93 Cal.App.4th 648 (6th App. 2001).  Id. at 652.  Id.  Id.  Id. at 653.  Id. at 660.  DVD Copy Control Assoc., 93 Cal.App.4th at 664.  Id.  DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 875 (2003).  DVD Copy Control Assn., Inc. v. Bunner, 116 Cal.App.4th 241, 245 (6th App. 2004).  Id. at 251.  Id.  Id. at 253.  Id. at 255.  409 F. Supp. 253 (S.D. N.Y. 2005).  Id. at 1.  Id.; see 18 U.S.C. 1832(a)(2) (2005).  Id. at 8.  Id. at 11.  Genovese, 409 F. Supp. at 12.  Id. at 13.  One who is independent of and has no connection or involvement with the original misappropriator of the trade secret.  To the extent one has exhibited discretion, akin to that of a magazine or newspaper publisher, in deciding to disclose a trade secret, then she may be liable. ** OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *21 (Cal. App. May 26, 2006) (noting that disclosure of confidential information about a company may expose a reporter or editor to liability).  See Lockridge v. Tweco Products, Inc., 209 Kan. 389, 393 (1972)(reasoning that there can be no recovery against those who are not misappropriators in the first instance, or possessors of the secret by virtue of learning it from the misappropriator(s) with knowledge that it was stolen.)  In cases where the information has previously or simultaneously become available by other means other than the Internet, it makes it even more difficult for the trade secret owner to attempt to argue that it should be protected. See, e.g., Religious Technology Center v. F.A.C.T. Net, Inc., 901 F. Supp. 1519, 1526 (D. Colo. 1995) (noting that the information had been available in an unsealed court file).  I rely on the UTSA because it has been adopted by a majority of the states, and because its trade secret definition is consistent with both the Rest. of Torts and the Rest. of Unfair Competition definitions.  UTSA 1; CROSS CITE ALSO TO UTSA SECTION SUPRA.  See, e.g., DVD Control Assn v. Bunner, 31 Cal. 4th 864, 901 (Cal. 2003) (Moreno, J. concurring) ([E]ven when a trade secret holder acts with perfect diligence, it has no action against the republisher of no-longer-secret information who does not act in privity with the original misappropriator.)  See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984) (Information that is public knowledge or that is generally known in an industry cannot be a trade secret.); Kewanee Oil Co. v. Bicron Copr., 416 U.S. 470, 475 (1974) (The subject of a trade secret must be secret, and must not be of public knowledge or of a general knowledge in the trade or business.)  Note that in some circumstances there can be various levels of access to a website, ranging from publicly available portions to those that are restricted to authorized users with passwords. However, this discussion assumes an independent third party has accessed information from a publicly available site, or legitimately through a more restrictive site. See, e.g., Inventory Locator Service, LLC v. Partsbase, Inc., No. 02-2695MA/V, 2005 WL 2179185, at *2 (W.D. Tenn., Sept. 6, 2005)(discussing a website with four levels of access).  See generally  HYPERLINK "http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW6.05&referencepositiontype=S&serialnum=2008680267&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1131&db=506&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner" \t "_top" Oja v. U.S. Army Corps of Eng'rs, 440 F.3d 1122, 1131 (9th Cir.2006) (Internet publication is form of aggregate communication intended for broad public audience similar to print media);  HYPERLINK "http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW6.05&referencepositiontype=S&serialnum=2006436010&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1131&db=506&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner" \t "_top" Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, (D.C.Cir.2005) (trade secrets posted on FDA website available to public);  HYPERLINK "http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW6.05&referencepositiontype=S&serialnum=2003588879&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=100&db=506&vr=2.0&rp=%2ffind%2fdefault.wl&mt=LawSchoolPractitioner" \t "_top" Am. Booksellers Found. v. Dean, 342 F.3d 96, 100 (2d Cir.2003) (when people post information to website available to public, they distribute it).  OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *13 (Cal. App. May 26, 2006).  See Unif. Trade Secrets Act 1 cmt. (1990).  This does not include people to whom the trade secret owner has disclosed the trade secret pursuant to a non-disclosure or confidentiality agreement.  See Religious Technology Ctr. V. Netcom On-Line Communication Servs., Inc., 1997 U.S. District. LEXIS 23572 at *40 (N.D. Cal. Jan. 3, 1997); DVD Copy Control Assn Inc. v. Bunner, 10 Cal. Rptr. 3d 185, 192-93 (2004). CONFORM CITES*  DVD v. Netcom, 923 F. Supp. 1231, 1256 (N.D. Cal. 1995).  See DVD Control Assn v. Bunner, 116 Cal. Ap. 4th 241, 10 Cal. Rptr. 3d 185 (2004).  Id. at 249.  DVD Copy Control Assn, Inc. v. Bunner, 116 Cal. Application 4th 241, 251 (2004).  Religious Technology Center v. Lerma, 908 F. Supp. 1362, 1368 (E.D. Va. 1995).  Id. at 1368.  RTC v. Netcom, 1997 U.S. Dist. LEXIS 23572 at *40 (N.D. Cal. Jan. 3, 1997).  Id.  See, e.g., U.S. v. Hsu, 40 F. Supp.2d 623, 630 (E.D. Pa. 1999) (What is generally known and reasonably ascertainable about ideas, concepts, and technology is constantly evolving in the modern age); see also MicroStrategy Inc. v. Business Objects, S.A., 331 F. Supp.2d 396, 417 (E.D. Va. 2004)(What constitutes readily ascertainable through proper means is heavily fact dependent and simply boils down to assessing the ease with which a trade secret could have been independently discovered).  See, e.g., Ann. Cal. Civ. Code 3426.1(d)(2), cmt re 1984 addition (West 1997) (explaining that the phrase was removed because it was viewed as ambiguous in the definition of of a trade secret, but that the assertion that a matter is readily ascertainable by proper means remains available as a defense to a claim of misappropriation.)  The American Heritage College Dictionary defines ascertainable as to discover with certainty, as through experimentation or experimentation. Pg. 79, 3rd ed. [FIX CITE **]  **** See, e.g., OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *24-25 (Cal. App. May 26, 2006) (analyzing why Internet web sites are publications).  The Restatement of Torts rejects the concept of a property interest in a trade secret, grounding trade secret protection on a general duty of good faith. Restatement of Torts 757 cmt. a (1939).  See See Lockridge v. Tweco Products, Inc., 209 Kan. 389, 395-96 (1972)(discussing why the misappropriation of trade secret is not a continuing wrong).  See supra Section II(B).  Uniform Trade Secrets Act 1, 16 U.L.A. 449. The Rest. of Torts and Restatement of Unfair Competition definitions are consistent with the UTSA.  Restatement (First) of Torts 757 (1939).  See, e.g., Williams v. Curtiss-Wright Corp., 681 F.2d 161, 164 (3rd Cir. 1982) (noting that the defendant had reason to know, and in fact knew, that the drawings were secret when he obtained them, and that their release to him was improper.) ADD CROSS CITE TO PART VIII B 3 RE NOTICE.  Improper means under the UTSA includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Uniform Trade Secrets Act 1 (1985).  **  See RTC v. Lerma, 908 F. Supp. at 1369 (It is the employment of improper means to procure the trade secret, rather than the mere copying or use, which is the basis of [liability]).  RTC v. Lerma, 908 F. Supp. 1362 at 1368.  See, e.g. DVD v. Bunner, 116 Cal. Application 4th at 251 ([I]f the allegedly proprietary information contained in DeCSS was already public knowledge when Bunner posted the program to this web site, Bunner could not be liable for misappropriation by republishing it because he would not have been disclosing a trade secret.)  Forr further discussion about the First Amendment in this context see generally Ryan Lambrecht, Note: Trade Secrets and the Internet: What Remedies Exist for Disclosure in the Information Age?, 18 Rev. Litig. 317 (1999).  Bunner, 31 Cal. 4th at 900 (Moreno, J., concurring).  See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996)(refusing to enjoin publication of trade secrets improperly obtained in violation of a protective order, noting, [t]he private litigants interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint.)  DVD Copy Control Assn v. Bunner, 31 Cal. 4th 864, 889 (2003).  See id. [??DVD Same page*]  Ford Motor Co. v. Lane, 67 F. Supp. 2d 745 (E.D. Mich. 1999).  Id. at 747.  Id.  Id.  Id. at 748.  Ford Motor Co., 67 F. Supp. 2d at 748.  Id. at 750.  Id. at 752-53 (citing New York Times Co. v. United States, 403 U.S. 713, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971) and Near v. Minnesota, 283 U.S. 697, 713, 75 L. Ed. 1357, 51 S. Ct. 625 (1931)).  Id. at 753.  See, e.g., Bruce T. Atkins, Note, Trading Secrets in the Information Age: Can Trade Secret Law Survive the Itnernet?, 1996 U. Ill. L. Rev. 1151, 1182-83 (1996); Note, Trade Secret Misappropriation: A Cost-Benefit Response to the Fourth Amendment Analogy, 106 Harv. L. Rev. 461, 465-66 (1992).  See generally Rodney A. Smolia, Information As Contraband: The First Amendment and Liability for Trafficking in Speech, 96 NW. U. L. REV. 1099, 1135-36 (2002)(discussing the silver platter doctrine which permits an independent agent to break the law to obtain incriminating evidence, and turn that evidence over to law enforcement on a silver platter.)  Unlike the Fourth Amendment silver platter cases, however, which justify such incentives by arguing that the Fourth Amendment only proscribes government action, an analogous rationale in trade secret law is not as strongly supportable. See id. at 1136.  Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481 (1974).  See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 164 (1989) (That which is published may be freely copied as a matter of federal right.); DVD v. Bunner, 116 Cal. Application 4th at 255 ([T]hat which is in the public domain cannot be removed by action of the sates under the guise of trade secret protection.)  167 F.2d 423 (3d Cir. 1948).  Id. at 423-24.  Id. at 424.  Id.  Id. at 426.  Id. at 429.  Lorenz, 167 F.2d at 429.  125 F.3d 1448 (Fed. Cir. 1997).  Id. at 1450.  Id.  Id. at 1454. However, the court noted that if GM did misappropriate the invention, Evans could still sue for misappropriation of trade secrets. Id.  466 F. Supp. 863 (D. Minn. 1979).  Id. at 865.  Id. at 868 (citing 8 Wigmore on Evidence 2325 (McNaughton rev.1961)).  Id. at 869.  Id.  813 F. Supp. 1426 (D. Ariz. 1993).  Id. at 1427.  Id. at 1428.  Id.  Id. at 1429 (citing In re Grand Jury Proceedings Involving Berkley & Co., 466 F. Supp. 863, 869-70 (D. NM. 1979)).  Resolution Trust Corp., 813 F. Supp. at 1429-30.  838 F. Supp. 1573 (S.D. Fla. 1993).  Id. at 1575.  Id.  Id.  Id.  C.P. Smith, 838 F. Supp. at 1577.  886 F. Supp. 1243 (D. My. 1995).  Id. at 1244.  Id. at 1245-46.  Id. at 1246.  As discussed earlier, supra Section VII, the harshness of such a rule is not unique to trade secret law, and is supported by both constitutional and patent law principles.  The standard utilized for this inquiry should be akin to the likelihood of success on the merits standard used in preliminary injunction cases. Most trade secret cases, particularly in the context of the problem presented here, will be decided at a preliminary injunction hearing. Thus, use of this standard should present no further difficulty, and may very well fold into the injunction test.  This is consistent with some courts and the UTSA ruling that accidental disclosures may not lead to loss of trade secret protection. **? ; See  HYPERLINK "https://www.lexis.com/research/buttonTFLink?_m=1e8a33d0c02f46d169c7ad3155534890&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b116%20Cal.%20App.%204th%20241%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=51&_butInline=1&_butinfo=UNFAIR%20COMPETITION%20THIRD%2039&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAk&_md5=e39226d5d1d4fa54fee25ad5652876ac" \t "_parent" Rest.3d Unfair Competition, 39, com. f, p. 431.  See supra Section IIB (discussing misappropriation). This reasoning is also similar to the tipper/tippee theory of liability in insider trading which extends liability to tippees who trade based on inside information received from a misappropriator, providing that the tippee knows or has reason to know the tipper breached a duty of trust and confidence. See SEC Rule 10(b)(5).  The tools currently in place for addressing removals from websites are not satisfactory given the special concerns posed in these kinds of cases. If trade secret owners are to bear the burden of acting swiftly to remove trade secrets from websites, then it is incumbent upon our legal system to provide the appropriate efficient and effective mechanisms to do so. A mechanism akin to the Digital Millenium Copyright Acts safe harbor provisions for internet service providers who post copyright protected materials is a useful starting point. 17 U.S.C. 512 (*year). The author will be address this topic in a separate forthcoming paper.  The appropriate strategy must be carefully tailored in light of the circumstances. See Victoria A. Cundiff, Trade Secrets and The Internet: Preventing The Internet From Being An Instrument of Destruction, 842 PLI/PAT 347, 355-59 (2005) (discussing considerations in litigating to remove trade secrets from the Internet).  DVD v. Bunner, 116 Cal. App. 4th 241, 252 (Cal. Ct. App. 2004).  See Ryan Lambrecht, Trade Secrets and the Internet: What Remedies Exist For Disclosure in The Information Age? 18 Rev. Litig. 317, 338 (1999).  **  See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 418-19 (4th Cir. 1999)(discussing cases dealing with disclosure of trade secrets in court files).  IMED Corp. v Systems Engineering Associates Corp., 602 So. 2d 344, 346 (Ala. 1992) (interpreting state version of the UTSA).  See id. at 347; see also section II (B)(1) supra..  Curtiss-Wright Corporation v. Edel-Brown Tool & Die Co., Inc., 381 Mass. 1, 6 (1980) (citations omitted).  See C&F Packing Co., Inc. v. IBP, Inc. and Pizza Hut, Inc., No. 93C1601, 1998 U.S. Dist. LEXIS 3221, at *18 (N. D. Ill. March 16, 1998).  Restatement of Torts 757, Comment 1 (1939).  This generally refers to notice at the time of the disclosure. However, notice from the trade secret owner after the initial disclosure may also suffice. See C&F Packing Co., Inc. v. IBP, Inc. and Pizza Hut, Inc., No. 93C1601, 1998 U.S. Dist. LEXIS 3221, at *17 (N. D. Ill. March 16, 1998).  See C&F Packing Co., Inc. v. IBP, Inc. and Pizza Hut, Inc., No. 93C1601, 1998 U.S. Dist. LEXIS 3221, at *18 (N. D. Ill. March 16, 1998).  See, e.g., DVD v. Bunner, 116 Cal. App. 4th at 253 (suggesting that knowledge about the unethical origin of the information is insufficient to prevent use of information that has become publicly available).  DVD v. Brunner, 116 Cal. App. 4th at 253.  This knowledge requirement is consistent with the criminal claim for theft of trade secrets found in the Economic Espionage Act, which requires that the defendant knowingly stole or otherwise obtained the trade secret information. See 18 USCA 1832.  An abbreviation for hijacked, which the court interpreted to mean that that stolen or misappropriated. U.S. v. Genovese, 409 F. Supp. 2d 253, 257 (S.D.N.Y. 2005).  Id.  See, e.g., OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *3 (Cal. App. May 26, 2006) (noting that electronic slides were conspicuously marked as Apple Need-to-Know Confidential.)  See, e.g. Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 747, 753 (E. D. Mich. 1999) (defendant threatened to publish disturbing materials about plaintiff on his website, and to solicit trade secrets from plaintiffs employees).  See, e.g., DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 873 (2003) (discussing that trade secrets were obtained through reverse engineering in violation of license agreement, and that defendants knew of this improper means of acquiring the trade secret).  This would encompass owners and operators of web sites who make decisions about what materials to publish on their sites. Analogous to their traditional media counterparts, editors and reports of newspapers and magazines for instance, they could be liable to the trade secret owner and subject to an injunction. This is an unsettled area of the law, however, and the argument espoused here appears to be novel. I plan to investigate and address it more fully in a subsequent paper. See generally OGrady v. Apple Computer, Inc., No. H028579, 2006 WL 1452685 at *22 (Cal. App. May 26, 2006) (reasoning that operators of web sites are publishers); see also Bartnicki v. Vopper, 532 U.S. 514 (2001) (addressing whether the media may be liable for using information unlawfully obtained by a third party); Marc A. Franklin, David A. Anderson, Lyrissa Barnett Lidsky, Mass Media Law Cases and Materials 536-547 (7th ed. 2005). But see Ford Motor Co. v. Lane, 67 F. Supp. 2d 745, 753 (E. D. Mich. 1999) (refusing to enjoin publication where no fiduciary duty or confidentiality agreement exists); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996)(refusing to enjoin publication of trade secrets improperly obtained in violation of a protective order).  See Lockridge v. Tweco Products, Inc., 209 Kan. 389, 393 (1972).  Cf. RTC v. Lerma, 908 F. Supp. 1362 at 1369 (Because there is no evidence that The Post abused any confidence, committed and impropriety, violated any court order or committed any other improper act in gathering information from the court file or down loading information form the Internet, there is no possible liability for The Post in its acquisition of the information.) Some Supreme Court cases also support the proposition that the conduct of a publisher may be taken into consideration in deciding whether to grant First Amendment protection. See, e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984); Cohen v. Cowles Media Co., 501 U.S. 663 (1991).  See Underwater Storage, Inc. v. U.S. Rubber Co., 371 F.2d 950, 955 (D.C. Cir. 1966); see also Lockridge v. Tweco Products, Inc., 209 Kan. 389, 393 (1972)(We do not believe that a misappropriator or his privies can babptize their wrongful actions by general publication of the secret.) cf. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1254 (D.C. Cir. 2005)(Where FDA had posted plaintiffs trade secrets on its website without authorization, it could still be liable for misappropriation even though the trade secrets had been publicly available on the website for five months).  See generally Elizabeth A. Rowe, 7 Tul. J. Technology. & Intell. Prop. 167, 201-07 (2005)(discussing implications of seeking injunctive relief in a misappropriation case).  The three types of injunctions in trade secret cases are 1) prohibitions against disclosure or use, 2) sanctions against engagement in competitive employment, and 3) bans on the manufacture of products in which the trade secret is an essential ingredient. Dan B. Dobbs, Law of Remedies, 10.5 (3), at 694-95 (2d ed. 1993).  Note that a cached version of information may continue to reside in search engines even after the information has been removed from an active page. Victoria A. Cundiff, Trade Secrets and The Internet: Preventing The Internet From Being An Instrument of Destruction, 842 PLI/PAT 347, 351 (2005).  See DVD v. Bunner, 116 Cal. App. 4th 241, 253-54 (Cal. Ct. App. 2004).  ***  See DVD v. Bunner, 116 Cal. App. 4th 241, 254 (noting that an injunction is appropriate where the information is no longer secret). A trade secret owner may consider turning to other areas of law for relief or to criminal prosecution. Depending on the nature of the trade secret information, copyright laws, for instance might be an alternative avenue.  See Underwater Storage, Inc. v. U.S. Rubber Co., 371 F.2d 950, 955 (D.C. Cir. 1966) (Once a secret is out, the rest of the world may well have a right to copy it at will; but this should not protect the misappropriator or his privies.) ; * FIND OTHER SIMILAR CASES **  See DVD v. Bunner, 116 Cal. App. 4th 241, 254 (Cal. Ct. App. 2004).  Trade secret owners can step such proactive steps as entering into clear and specific non-disclosure agreements with employees and other authorized persons, limiting disclosure of information to a need-to-know basis, clearly marking documents as confidential and trade secret, and monitoring employees. See generally Elizabeth A. Rowe, 7 Tul. J. Technology. & Intell. Prop. 167, 192 n. 171 (2005); Victoria A. Cundiff, Trade Secrets and The Internet: Preventing The Internet From Being An Instrument of Destruction, 842 PLI/PAT 347, 353-54 (2005).  In light of the unique potentially destructive power of the Internet, trade secret owners should also be provided with the necessary legal tools and resources with which to exercise their duty of vigilance and to facilitate removal of trade secret information that has been posted, or where posting is imminent. In that regard, legislative action may be necessary to ensure that the laws that regulate the Internet and Internet providers incorporate considerations of the danger the Internet poses to trade secrets and more generally, businesses. ***  Pavlovich v. Superior Court, 109 Cal. Rptr. 2d 909, 912-913 (Cal. App. Ct. 2001).      PAGE 30 Elizabeth A. 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