by William Patry on The Patry Copyright Blog

Sometimes copyrighted works contain trade secrets or confidential information. Out of concern with making such material available for public disclosure, particularly in software, the Copyright Office has issued regulations that permit the deposit of less than all of the work. (In the case of secure tests, there is no deposit left behind). What if the claimant doesn't take advantage of this redaction option? Is trade secret protection lost?

Trade secret protection is purely a matter of state law, and nothing in the Copyright Act deals with the question. There is not a lot of case law on point. In Computer Corp. v. Serena Software Int'l, Inc., 77 F. Supp.2d 816, 819-820 (E.D. Mich. 1999), the court, in denying defendant's motion for summary judgment, let the issue go to the jury, but seemed of the view protection was not lost. Other courts have come out the other way. See e.g. Tedder Boat Ramp Systems, Inc. v. Hillsborough County, Florida, 54 F. Supp.2d 1300 (M.D. Fla. 1999); Cinebase Software, Inc. v. Media Guaranty Trust, Inc., 1998 U.S. Dist. LEXIS 15007, at *29 (N.D. Cal. Sept. 24, 1998)(but preserving trade secrets for redacted material); Phillips v. Avis, Inc., 1996 U.S. Dist. LEXIS 7342, at *7 (N.D. Ill. May 29, 1996)(New York law).