Any lawyers out there who can answer an intellectual rights question?

[LiberalHeart]

So, these guys serve as sources to a newspaper for articles they write about financial and political corruption. Thanks partly to them, the newspaper gets nominated for a Pulitzer and is a finalist after the votes are counted, but don't win. Meanwhile, a disgruntled reporter at the paper sends an anonymous letter to the Pulitzer people saying the paper doesn't deserve the prize, or sentiments to that effect, because they have ethical problems.

Well, the reporter is now fired after an investigation revealed he authored the letter. But he still wants his gripes aired so he gives a weekly paper a copy of a book proposal apparently written by the two sources who helped the other newspaper that did the almost-Pulitzer-worthy stories. The weekly decides to lift portions of the proposal and publish them. The sources go to court trying to stop the publication of what they believe is trade secrets and intellectual property illegally obtained by the weekly paper.

The judge refuses to stop publication, the paper will go out Wednesday (distributed free around the city), and the sources say they're suing the paper.

How much chance do the sources have to prevail in this case? I'm no lawyer, but it's looking like a very poor business decision on the part of the weekly paper to publish any part of the proposal.

Here's a link to a story about this case:

TOLEDO -- The "Coingate" scandal landed in a Lucas County courtroom Tuesday, but this time Tom Noe wasn't one of the players. The case centered around two men who say they are the key sources who helped blow the lid off a rare coin investment scheme and the funneling of illegal campaign contributions to the Bush/Cheney re-election campaign.

Joe Kidd and Jon Stainbrook went to court to try to stop a local weekly newspaper from publishing excerpts from a book proposal that describes events leading to the arrest of Tom Noe and criminal charges against others. Kidd is the former director of the Lucas County Board of Elections, and Stainbrook is a former candidate for local public office who has been active in Republican politics for years.

http://www.wtol.com/Global/story.asp?S=4996758

[emcguffie]

1. I hope someone knowledgeable replies to this. NT

[Jazz2006]

2. Intellectual Property law is not my specialty....

but if it's true that "There was no book, there's no manuscript, there's no publisher's deal, there's no final draft," ...

and if it's true that the info to be published is an email exchange about things that the sources had already fed to another newspaper, then it seems to me that the IP claim probably has no legs.

From what I can garner from the linked story and your post, it appears that the sources were feeding information to the first newspaper freely and that the newspaper reported that information, which led to the potential Pulitzer. If that's the case, it seems apparent that the sources were not claiming any proprietary rights to the info that they were feeding to the first paper all along, so it seems rather odd that they would claim proprietary rights post-publication of that information which they passed on to others for the very purpose of publication without remuneration and for the very purpose of publication without naming them as the sources.

I see nothing to suggest that there were any provisos placed upon the initial publication of the information by the first newspaper, and nothing to suggest that the sources were claiming any kind of proprietary rights with respect to the information that they were passing along.

So to claim proprietary rights after the fact and only when an email exchange is threatened to be exposed about a potential book that has not yet been written seems outside the realm of intellectual property protection.

I think that in the context of IP as it relates to writing, you have to actually write something original before you can claim intellectual property rights to it.

Like I said, though, IP law isn't my specialty, so I could be dead wrong.

But I'm posting this to kick your thread in hopes that others with an IP speciality might see your thread and respond :D

[LiberalHeart]

3. Thanks. Here's additional info...

1. This wasn't a mere email. It was a formal book proposal document about 20 pages long.

2. The story the pair have to tell isn't about what the newspaper published; it's about what has not yet been published about the events, and it's material that's known only to them.

3. They were not revealed as the newspaper's sources until the weekly decided to publish their proposal. In fact, the newspaper is denying they were the sources, but if you read the denials carefully you can see through the loopholes.

4. The proposal was not distributed with their permission.

Does that alter your opinion?

[izzybeans]

5. I'm no lawyer, but if the weekly editors were my students they'd be

in the Dean's office on an intellectual noose. The Dean can decide whether they should be thrown out of school or not.

Intellectually, this is plagiarism. Ownership is a different story given our economies propensity for intellectual graft. The legality of the thing is beyond me. The ethics involved are suspect, however.

[Jazz2006]

7. I read the story again and the new story at the Toledo Free Press....

and it sounds as though the basis for seeking the injunction was on the basis that the information contained in the proposal was a "trade secret".

An idea for a book does not fit neatly into the definition of a trade secret.

A trade secret is generally defined as "information that derives independent economic value from not being generally known or readily ascertainable. Among the things that can be trade secrets are a formula, pattern, compilation, program, device, method, technique, or process."

The types of factors that a court looks at in determining whether something constitutes a trade secret are:
"the extent to which the information is known outside the business;
the extent to which it is known to those inside the business, i.e., by the employees;
the precautions taken by the holder of the trade secret to guard the secrecy of the information;
the savings effected and the value to the holder in having the information as against competitors;
the amount of effort or money expended in obtaining and developing the information; and
the amount of time and expense it would take for others to acquire and duplicate the information."

One can certainly assert proprietary rights in one's ideas. But it appears that if a person wants to protect an idea as a "trade secret" there are several criteria that have to be met, not least of which is that the person has to take active steps to prevent access to the idea and to preserve the secrecy of it.

It is not enough to just say, hey, I didn't give Mr. X permission to hear about my idea or to read it or to report on it and therefore it is a trade secret. The person seeking protection of the info as a trade secret is required to do things to prevent the info from being spread around. Such as, for instance, obtaining non-disclosure agreements from those to whom the person tells the secret info and from those who might gain access to the secret info, or marking the material with a proprietary legend restricting the use and disclosure of the information, and taking care by means of other positive steps to prevent the secret info from falling into public knowledge.


There is a straightforward kind of primer in lay terms at this link:

http://law.freeadvice.com/intellectual_property/trade_secrets/

Hope that helps!

And in the meantime, I still hope that an IP lawyer stops by to correct anything I may have got wrong :D

[LiberalHeart]

8. Thanks...

I believe there were steps taken to ensure confidentiality, but I see the criteria you listed as posing problems. Would they have been better off claiming copyright violations? Wouldn't the proposal have been under copyright automatically when they wrote it?

[Jazz2006]

9. You're welcome. Unfortunately, I don't think that they could

successfully invoke copyright law either - and that's probably why they didn't - because copyright applies to original creative works and not ideas.

Copyright law, generally speaking, protects original creative "authorship" and authorship, for the purposes of copyright law, includes literary, musical, dramatic, photographic, and audio-visual recordings, etc. but not "ideas".

Ideas and concepts are not subject to copyright unless and until an original work that flows from the idea or concept is actually authored, and in this case, there is no suggestion that any original work (i.e. book, poem, musical score, movie, photo, etc.) was actually authored as a result of the idea.

So, I think the lawyers for the putative authors really could not have argued the injunction hearing on the basis of copyright and the only real opening they had was to argue it on the basis of 'trade secret' ~ even though it was iffy at best ~ because there was at least a potential, remote or not, for a finding that the "understanding" between the putative authors and the critiquer (and any other steps that the putative authors may have taken to protect the secrecy of the info) was sufficient to invoke the trade secret protection.

I'm sorry that I can't predict a happier ending here for you, but I think that the putative authors are truly out of luck. But on the up side, for future reference, they'll know now how to protect and safeguard their ideas and subsequent writings.


*And once again, I am going to qualify all of this with the proviso that while I am a commercial and civil litigator, I do not specialize in IP law.


(edit: typo)

[LiberalHeart]

12. How can it be just an "idea"...

... when it's someone's personal experiences? Wouldn't this fall under the memoir genre?

[TomClash]

4. Good guys lose

No trade secret if he got a copy of the book proposal from the authors without agreeing not to disclose it.

No publication, no IP liability.

[LiberalHeart]

6. That isn't how the paper got it.

A reporter/book author was consulted for a critique of the work in progress (proposal). It was given to him with the understanding it would be confidential. He gave it to another reporter without permission to do so, and that reporter gave it to the paper. The paper does not employee either of those reporters.

[TomClash]

10. But the Court found there was no trade secret

To establish confidentiality the intent to keep the information confidential has to be communicated to the receiving party by the disclosing party. You said that it was communicated, but the Court didn't find that and the article doesn't say that. Plus, I suspect some of the contents of the "trade secret" had already been given written in the Pulitzer nominating articles and had been shown to others (like book editors). One question I'd have is why the confidential information was shown to the fired reporter in the first place.

[LiberalHeart]

11. It wasn't shown to him by them. (n/t)

[TomClash]

13. But they gave it to somebody who showed it to the bad reporter, right? nt

[LiberalHeart]

14. Yes, with the understanding of confidentiality.