On December 20, 2020, the US Senate unanimously passed a new bipartisan bill designed to punish foreign individuals and corporations involved in intellectual property theft.
The Protecting American Intellectual Property Act was co-authored by Sen. Ben Sasse, R-Neb., and Sen. Chris Van Hollen, D-Md. The bill requires a report to Congress every six months identifying:
- any individual or firm that has engaged in, benefitted from, or materially assisted the significant theft of U.S. trade secrets, if that theft constitutes a major threat to the national security, foreign policy, economic health or financial stability of the United States; and,
- the chief executive officers and board members of the reported firms and whether those individuals have benefitted from the significant theft of U.S. trade secrets.
On May 22, the Eleventh Circuit clarified trade secrets misappropriation analysis under the Florida Uniform Trade Secrets Act (“FUTSA”), strengthening the trade secret protection offered by the statute. The decision vacated a magistrate judge’s finding that the defendants had not misappropriated trade secretes following a bench trial in the Compulife Software Inc. v. Newman et al. matter (No. 18-12004). The court found error in the magistrate’s failure to “consider the several alternative varieties of misappropriation” contemplated by FUTSA and the magistrate’s reasoning that the public availability of life insurance quotes on the plaintiff’s website “automatically precluded a finding that scraping those quotes constituted misappropriation.”
A recent decision by the Federal District Court for the Eastern District of New York reinforces that owners of trade secret computer programs should carefully approach copyright registration in order to maintain both copyright and trade secret protection. This includes being conscious of copyright regulations allowing the partial and redacted registration of computer code with the Copyright Office.
Companies and other organizations increasingly must face serious and complex threats to their business and infrastructure. Whether the threat is trade secret theft, rogue insiders, cybercrime adversaries, aggressive competitors, or misconduct by business and supply chain partners, companies should remain constantly vigilant and defense ready. Adversaries, including especially cybercriminals operating exclusively in the digital domain, are often highly motivated, sophisticated, resourced, and innovative. The opaque, pervasive, and global nature of modern digital networked environments presents opportunities for criminals. The sophistication and relentless creativity of these bad actors pose significant challenges to companies and law enforcement agencies in being able to detect, assess, mitigate, attribute, and deter these threats. Because available tools and real-world practices to address these threats often outpace the law, companies are called upon to develop their own comprehensive approaches to investigate and remediate these forms of risk. In doing so, companies must be willing to assume a certain level of risk to effectively investigate and obtain sufficient insight to counter the problems.