Implications of Video Games and Immersive Entertainment and the Law of Trade Secrets

AuthorThomas J. Mihill, Steven M. Kushner, Adam C. Losey
Pages225-254
225
5
Implications of Video
Games and Immersive
Entertainment and the
Law of Trade Secrets
Thomas J. Mihill1
Steven M. Kushner
Adam C. Losey
Takeaways
Trade secrets are controlled by both federal and state
law; specific applications may vary by jurisdiction.
Only “secrets” that provide an economic benefit as a
result of the secrecy are protected.
Reasonable efforts under the circumstances are required
to protect the secrecy of the information, but game
developers can protect information in their source code
as long as only the object code is publicly distributed.
Trade secret protection for software can coexist with
copyright registration of the software.
1. Thomas J. (T.J.) Mihill is a partner with Owen, Gleaton, Egan,
Jones & Sweeney, LLP. Steven M. Kushner is a partner of the firm
Fellows LaBriola LLP. Adam C. Losey is a partner of the firm Losey
PLLC. For complete author biographies, see the Contributors
section of this book.
IMPLICATIONS OF VIDEO GAMES AND IMMERSIVE ENTERTAINMENT
226
Introduction
Trade secret protection applies to the information that a company
keeps confidential and from which it derives an economic advan-
tage because of such confidentiality. Most other forms of intel-
lectual property (IP) protection, such as copyrights, patents, and
trademarks, are governed exclusively or largely by federal law. By
contrast, trade secret law derives from both state and federal law.
The basic elements of trade secret protection were laid down in
the middle of the 19th century, and have not changed substantially
since then.2 Further, there is no reason to believe that the nature of
trade secret law will change appreciably in the foreseeable future,
because the law in its current form is adequate to handle most, if
not all, new developments in business and technology.
I. Trade Secrets Generally
A. What Is a Trade Secret and What Can Be Protected?
Trade secret law was formerly controlled entirely by state law;
this changed with the Defend Trade Secrets Act of 2016 (DTSA), 18
U.S.C. § 1836 et seq. The DTSA allows an owner of a trade secret to
sue in federal court where trade secrets have been misappropri-
ated. While the DTSA provides federal trade secret protections,
it does not preempt state law trade secret protections. The DTSA
provides a federally uniform definition of a trade secret standard
for misappropriation. It further allows nationwide service of pro-
cess and execution of judgments.
Under the DTSA:
[T]he term “trade secret” means all forms and types
of financial, business, scientific, technical, economic, or
engineering information, including patterns, plans, compi-
lations, program devices, formulas, designs, prototypes,
methods, techniques, processes, procedures, programs,
2.
RESTATEMENT (THIRD) OF UNFAIR COMPETITION
, § 39 cmt. (a) (1995).

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