The Tragedy of the Commons: A Hybrid Approach to Trade Secret Legal Theory

Current theories governing trade secrets law incompletely and inadequately protect substantial investment in innovation, rendering them inefficient, reactionary, and largely illusory. Trade secret law exists to fill a gap between other forms of intellectual property and to encourage substantial investment in innovation and to recoup the time and money expended pursuing it, to the long-term benefit of the greater public good. Without strong trade secret protections, the “tragedy of the commons” would lead to the unfair destruction of the fruits of capital and labor and discourage investment in activities calculated to benefit the public, thus hurting our society. I propose a modern property theory of trade secrets law that blends elements of both in an attempt to recalibrate the incentives our law offers innovators in the age of the Internet.