Tuesday, December 15, 2015

Can a work of authorship which is copyrighted be a trade secret?

The post titled Sheriff’s association blocks release of jail standards in lawsuit suggests that which is copyrighted can be protected as a trade secret:

As they prepare to argue the $10.7 million suit, attorneys for Edwin Burl Mays Jr. have asked the county for “Oregon Jail Standards, Policies and Criteria that were used in inspections of the Deschutes County Adult Jail between 2010 and 2015,” court records show. Mays’ son, Edwin Mays III, died of a methamphetamine overdose in the jail nearly a year ago.

Those standards might shed some light on the best practices the sheriff’s office aspired to at the time of Mays’ death, which is under investigation by the Oregon Department of Justice. His father’s attorneys have argued that Mays asked for medical help; the jail’s video of the night Mays died, released to The Bulletin in March, shows him behaving erratically while deputies mock him.

Though Mays’ attorneys can have the so-called Oregon Jail Standards, they remain sealed because they’re the property of the nonprofit Oregon State Sheriffs’ Association. The association says the standards are proprietary content. The standards, which are voluntary, are distinct from state and federal laws and are used in biannual inspections of county jails.

The standards can be released to Mays’ attorneys under a protective order, U.S. District Judge Ann Aiken determined Nov. 24. A protective order means in this case the standards are sealed and can only be shown to a select group of people directly or indirectly involved in the lawsuit — such as experts and court recorders .

Aiken’s Nov. 24 order also states any “documents, testimony, written responses or other materials” in the case that contain information the sheriffs’ association reasonably believes is confidential can be designated as such.

Although the standards are applied in the inspection of public facilities, the association argues they are a “trade secret” under Oregon law because the association owns them. John Bishop, the association’s executive director and the retired sheriff of Curry County, in an email Wednesday compared the standards to “the formula for Coca Cola or the recipe for KFC.”

One has the text

“Making the standards public would destroy their value,” Bishop wrote.

BUT note

Online U.S. Copyright Office records show the association registered a copyright for the first edition of the Oregon Jail Standards in 1999; the most recent registry is for the fifth edition of the standards in 2012. A representative of the Portland office of the law firm that handled the most recent registration, Lane Powell PC, could not be reached for comment.

Generally, the public is prohibited from duplicating material that’s under a copyright, according to University of Oregon law Professor Emeritus Dominick Vetri, but that doesn’t necessarily bar the public from knowing what the work contains.

A request to view the standards, submitted Thursday to the Library of Congress, was not responded to. Not all works registered with the Copyright Office are kept at the Library of Congress, and not all are published. If a work is published, the library determines whether it will maintain a copy for public viewing.

From the Duke Law Journal in 1981:

to enforce rights under copyright, copies of the trade secret must be deposited at the
Copyright Office. This requirement amounts to public disclosure of the secret, eliminates trade secret protection, and once again strips protection away from confidential ideas.

More on this later.

**As a footnote, as of 10:48am eastern on Dec. 15, patentlyo seems to be "not responding."


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