Rules of the 'telecosm'
Long, long ago, if you wanted to converse with a computer, you had to talk to it in the ones and zeros it understood, generally in the form of a punched card where a hole meant “1,” and no hole meant “0.” Before this, it was even worse. You had to throw switches or plug wires into receptacles in the computer to tell it what to do, an activity that took place in the vicinity of several thousand very hot vacuum tubes.
Eventually, humans realized they could use the computer to help it talk to itself, and they devised instructions made of ones and zeros that told the computer what that meant.
Piles of instructions like these came to be called a program; piles of programs, as we have learned, constitute software. By 1960, when I was already very much around, most computers understood programs. So did a handful of longhaired eccentrics called programmers who were also called “systems analysts.” Another way to think of programs is this: they are the thoughts that computers have.
The world’s computer age, the era of the microchip, called by colorful and prolific technology writer George Gilder the “microcosm,” is ending, not because it was a failure but because the microcosm itself paved the way for a new era — a new technology that is “transforming culture, economics and politics” far more incisively than the computer age did. Gilder has been called the “guru of high technology, a man whose slightest utterance can move stocks.” I remember, however, that the head of the Russian delegation at a world telecom conference, Vladimir Domotov, referred to the word “microcosm” as early as 1992.
The novel word applicable now has been called “telecosm.” If you haven’t heard it before, just bear it in mind. It’s a word provoked, of course, by new communications technology. It is merely a term that covers high-spectrum communications, wireless networking and fiber optics, as Gilder points out.
Telecosm makes bandwidth, which all the techies know as information that moves at unbelievable speed. In the industry, therefore, the term most used for communications power is bandwidth, which has replaced computer power as the force of great technological advance. And we have elevated the age to that magnificent period everyone is talking about now — broadband!
Telecosm has raced through the crossroads of the new millennium with spellbinding speed. While such technology has raced at whirling speed, the discipline to govern all these advances — the law of the telecosm or Internet law — has gone at such a slow pace through the respective legal authorities of the global tele-community. Jurisdictions of the world have been slow in formulating this increasingly complex branch of the legal spectrum, because governments have to agree on common bases and dimensions.
So, as Twitter was hacked not too long ago and Facebook incurred some damage, there is a growing fear and helpless horror common to all civilized jurisdictions.
Even for something as elementary as the protection of trade secrets, there is simply not much unanimity, and, in the world of international commerce and trade, this aspect acquires critical significance.
Right now, two types of contracts may be used to protect a trade secret owner. The first type is known as a nondisclosure agreement. This agreement gives rise to an obligation by which a person promises not to disclose a trade secret unless permission is obtained.
The other trade secret protection agreement is a post-employment non-competition agreement. This arrangement is primarily used by employers to make a former employee promise not to become a competitor.
In both instances, the trade secret holder must show three items to enforce trade secret rights: the existence of a trade secret, the existence of a duty not to disclose the trade secret, and an unauthorized disclosure of the trade secret.
It should be noted that although nondisclosure provisions prohibit employers from disclosing proprietary information to outsiders, including but not limited to trade secrets, courts have generally limited the scope of nondisclosure agreements to protect what is already protected under existing trade secret laws.
What really inspired this topic of the protection of trade secrets was a series of e-mails I received from Dr. Mark Walton of New Jersey, USA. Aside from a law degree, Walton has a doctorate degree from Princeton University and his doctoral thesis was entitled “International Trade in the Age of the Internet.” After a succession of fruitful exchanges of views I decided to undertake this article, and we have the marvel of telecosm to be grateful for.
Basically, a trade secret is not simply information regarding a single event in, or an aspect of, a business; it is information about the ongoing conduct of the business. For trade secrets to be protected, they must indeed be treated as secrets. Consequently, Internet-related items should be protected as trade secrets and enumerated in the nondisclosure agreement. The following items, we both agreed, should be given special attention:
a) Content-sharing programs that allow one Internet site’s content to be integrated into the content of another’s site.
b) Internet site characteristics that optimize traffic or “hits” (more than 90 percent of Internet site selections are determined by how the top search engines and directories “index” the contents of any site.)
c) A list of proposed meta-tags (invisible text inserted into the Internet site to direct search engines) and keywords.
d) Linking agreements with other Internet sites that have demographically similar target markets.
In addition, standard nondisclosure terms should address nine points. The terms of the nondisclosure should be written in language that each party understands. These points are as follows:
a) The purpose for which the information may be used.
b) The people to whom the information may be disclosed (such as directors, officers, employees, subsidiaries, auditors and advisers).
c) What the people must be told (that such information is confidential and that by receiving such information, such people are agreeing to be bound by the nondisclosure agreement and are not allowed to use such information for any purpose other than those allowed).
d) What information is not covered (in particular, information that is, or becomes, generally available to the public)
e) What happens in the event that a party to the agreement is required to disclose by a subpoena or other such process.
f) Who owns the confidential material (generally all material disclosed by one party to another shall be and shall remain the provider’s property, the provider being the party who produced it for use originally)
g) What representations or warranties are associated with the disclosed material (usually, neither party makes any representation or warranty as to the accuracy or completeness of the disclosed material)
h) What actions may be used in the event of an unauthorized disclosure.
i) What future parties may be bound by the nondisclosure agreement (such as respective successors and assigns) and what state laws govern the nondisclosure agreement. Of course, it is understood that freely shared information will only be used to support the firm that disclosed the information and that nondisclosure agreements precisely cover specifically Internet-related secrets.
“The ultimate promise of the telecosm,” according to Gilder, is “to integrate a global optical Internet with billions of light processors working in parallel to accomplish most of the business of the world.” But there has to be order, there must be rules internationally adopted and recognized, is what Mark Walton and myself would like to emphasize.
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Thanks for your e-mails sent to jtl@pldtdsl.net.
