A Contract by Any Other Name is Still a Contract : Examining the Effectiveness of Trade Secret Clauses to Protect Databases

Due to the limits on the scope of copyright protection that are expressed in Feist Publications v. Rural Telephone Service, database owners have advocated in recent years for legislation to provide increased protection for their compilations. Taking a cue from the software industry, the database industry has also engaged in private ordering, i.e., the practice of using contracts to bolster the limited protection that copyright law provides. This article focuses on a particular type of contractual provision often found in terms of use agreements: the trade secret clause. It examines whether and to what extent such clauses are effective. After first noting the well-established legal principle that trade secrets cannot be created by contract, it details the practical, policy, and legal distinctions between a claim for breach of contract and a claim for trade secret misappropriation and notes the need of courts to treat each cause of action separately. Because information that is distributed over the Internet is unlikely to constitute a trade secret, it concludes with the observation that the use of trade secret law to protect widely-disseminated information is an ill-conceived strategy