Subject: Re: The term "intellectual property" considered useful
From: "Ben Tilly" <btilly@gmail.com>
Date: Wed, 3 May 2006 13:47:14 -0700

 Wed, 3 May 2006 13:47:14 -0700
On 5/3/06, Thomas Lord <lord@emf.net> wrote:
> Ben Tilly wrote:
> >> It is precisely this ability to refer to a bundle of partitionable,
> >> transferable, and licensable rights in one simple phrase that makes
> >> "intellectual property" a useful idea.  Those three properties are
> >> equally applicable to copyright, trademark, and patent, though the
> >> intangible entities protected and the content of the rights involved
> >> are very different.
> > [...]
> >
> > Then why are trade secrets lumped in there?
> >
> Depending on the nature of the NDAs involved (and trivially, if
> that number is 0), trade secrets are often constructed as a partitionable
> transferable, and licensable collection of rights (to information
> which the owner(s) of the secret is taking reasonable steps to keep
> secret).

You can try to do this.  It is certainly not always done.  And there
are limits to how far you can take this.  There are limits inherent in
what a secret is to what you can do with it in terms of transferring
it.

For instance if I want to sell a trade secret, I cannot describe it or
I have no secret left to sell.  If I sell access to a trade secret to
many parties, eventually a judge may say that my activities have made
it so widely known that it is not a secret.  If I sell a trade secret,
I cannot lose the knowledge of that secret myself and hence I retain
the ability to use it.

All of these barriers to transferring ownership of a trade secret that
have no parallel in the worlds of copyright, trademark and patent law.

> No idea why Stephen left trade secrets out but he shouldn't
> have.

Well they are certainly under the umbrella of the phrase "intellectual
property".  I remain unconvinced that, in general, they fit his
definition of "property" very well.

Cheers,
Ben