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Abstract

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in various contexts.

Sometimes, but not as often as information owners/possessors assert, the disclosure of information will result in the loss of associated rights in the information, but other times it will not. This can happen, for instance, when no legal rights attach to a specified body of information, or when any rights that do attach (like copyrights) continue to exist even if there is a disclosure of the information.

Because different areas of information law have developed different meanings of the term disclosure (and related terms, like “publication”), it is important for scholars, courts, and litigants to understand those meanings and use them properly. Otherwise, there is a risk that claims of wrongful disclosure of information will unduly influence policymakers and judges to favor the claims of information owners/possessors over those who are entitled to access and use the subject information. In other words, the limitations that exist on the scope of various information rights should not be overshadowed by the rhetoric of loss and theft when no such loss or theft is possible.

This article begins by first illustrating the different ways that the term “disclosure” is used in law, using trade secret law, patent law, and copyright law as case studies. It concludes by setting forth a typology of disclosure that should be used to explain the legal consequences of acts of disclosure for various types of information. Only Type-L disclosures (those that result in the loss of associated information rights) fit the rhetoric of information owners/possessors.

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