Chapter 6. Trade Secrets

Trade secrets are the oldest form of intellectual property. According to some experts, trade secret law dates back at least to the Roman Empire, where the Roman courts recognized lawsuits for an actio servi corrupti, literally, an action for corrupting a slave. The actio servi corrupti was used to protect slaveholding tradesmen or landholders from the harm caused by rivals “corrupting” a slave, usually through bribery or intimidation, and causing that slave to turn over confidential information. Anyone found guilty of corrupting a slave was liable to the slave owner for twice the amount of damages.^[3]

^[3] For more information, see A. Arthur Schiller, Trade Secrets and the Roman Law: The Actio Servi Corrupti, 30 Colum. L. Rev. 837 (1930). Recent scholarship has cast doubt on this interpretation of the actio servi corrupti—see Alan Watson, Trade Secrets and Roman Law: The Myth Exploded, 11 Tul. Eur. & Civ. L.F. 19 (1996), but I prefer the more colorful, earlier account. See also Merges et al., Intellectual Property In the New Technological Age, 3d. ed., Aspen, 2003.

Partially because of its ancient heritage, trade secret law doesn’t include modern 17th-, 18th-, and 19th-century notions such as utility and the public domain. Therefore, trade secrets don’t work under the same framework as other types of intellectual property. Instead, trade secrets are just valuable information that you keep secret. We as a society have decided that, in some cases, we will honor and protect your right to keep your business to yourself. As a result, basic trade secret law is relatively uncomplicated.