Amerikanisches Recht (II): Trade Secret

Vor ein paar Wochen habe ich einen ersten Beitrag des auf Spiele und virtuelle Welten spezialisierten US-Anwaltes Sean Kane über amerikanisches Recht gepostet. Damals gint es um Copyright.

Heute folgt Teil II, Trade Secrets. Nach amerikanischem Recht ist nämlich streng darauf zu achten, wie vertrauliche Informationen geschützt werden, damit diese ihren Charakter als rechtlich geschütztes Betriebsgeheimnis nicht verlieren.

Damit übergebe ich wieder an Sean Kane.

While on the subject of employee contracts, it is also important that a game developer have a binding confidentiality and/or non-disclosure agreement (NDA) with each of its employees. An NDA is intended to prevent employees from sharing proprietary information with persons and entities outside of the game company. Proprietary information can include numerous things including, methods of game production, customer lists, upcoming releases, business agreement terms, or generally any other competitive advantage that is not publicly known. A non-disclosure agreement enables a video game company to potentially prevent any disclosure of protected information and/or provide for the recovery of financial damages should an employee disclose such information. An NDA should be carefully drafted so that it prevents the employee from disclosing proprietary information both during their employment with the game developer and for all time thereafter.

Follow up:

NDAs are an important part of a game company’s plan for protecting trade secrets. Trade Secrets are any information that (1) is not publicly known that (2) provides some economic benefit to the company that keeps it and which (3) is the subject of reasonable protective measures to prevent its disclosure to third parties. A trade secret could be any of the types of proprietary information mentioned above or nearly any other information so long as it fits all three requirements of these requirements. NDAs should be a part of any trade secret protection plan, but further protections, including limiting access to only those employees that use the information, password protecting any files containing the information and locking up any stored copies of the information, may also be required for the information to receive trade secret protection under the law. As opposed to copyrights which are protected under U.S. federal law, trade secrets receive varying protection from state to state. As such it is important to be knowledgeable of the particular requirements of the jurisdiction in which one stores information so as to make sure the efforts taken to protect trade secrets will be sufficient for the company to seek legal recourse should a third party breach these protections to access a trade secret.

Protecting confidential information and intellectual property however, is not a matter of simply establishing static security measures; it must be an ongoing process, with a particular focus on times when new relationships are forged and new parties may become privy to company information. While an NDA is certainly appropriate for new employees upon their hiring, it may also be important at the commencement of the hiring process if the applicant may be exposed to any information during the period of their consideration which the company would like to keep confidential. The same goes for entering into relationships with third party entities, including other game developers and game publishers. A game company must be cautious and not let excitement and impatience when courting opportunities for new business or new avenues of monetizing existing projects prevent them from protecting their IP and confidential information by requiring that bargaining parties sign NDAs before discussing projects and proprietary company information.

Kontakt mit Sean Kane kann telefonisch (001 - 212 - 696-0010) oder per Mail aufgenommen werden. Er veröffentlicht regelmäßig auf seiner Webseite Virtualjudgement.com.