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Background:

Recently, some cards for an upcoming Magic the Gathering Set(trading card game) were leaked to the public a month before Wizards of the Coast(the company that makes Magic) intended to tell the public about the cards.

There's a lot of controversy in the Magic community right now, about these leaks, and Wizard's of the Coast's response to the leaks. If you want to read more about it, you can go to a magic fansite.

Question:

Assume the following:

  • You have absolutely no contractual obligation to the company that has anything to do with company secrets.
  • You are exposed to information about a product, including photos of that product that the company is going to release to the public.
  • Let's assume your friend told you this information. You don't know where your friend got this information.
  • The public knows a new product is coming out, but they don't have the specific information that you've been exposed to.
  • The company definitely does not want information of this product leaked to the public.
  • The company definitely does not want you to know this information.

Then:

  1. Is it illegal to leak that information to the public?
  2. If so, then if enough people know that information, does it become legal to spread that information?
  • Wizards of the Coast seems to be owned by Hasbro, a publicly traded company, so there may be an insider trading angle that would not apply in the case of a privately held company. – phoog Dec 23 '15 at 19:06
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No it is not illegal.

In fact, what you describe is pretty much the modus operandi for the profession known as journalism.

Providing that the person who now has the information did not obtain it through an illegal method and is not bound by any contractual or fiduciary duty to the owner of the information they can do whatever they want with it. Copyright will still apply so they would be unable to copy the information but they can paraphrase or describe it in any way they want.

The Pentagon Papers is the seminal case in the USA. They were a top secret report that was illegally given by a government employee to the press. The US Supreme Court said that they could be published notwithstanding.

As far as the law is concerned, if you want to keep a secret its your obligation to not tell anyone.

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  • This doesn't quite capture what happened in the Pentagon Papers case, which dealt only with prior restraints and did not address whether publishing those papers was legal. – bdb484 Jul 13 at 12:39
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I'll asssume that the information is a trade secret. Protection by copyright works in a completely different way. For example copyright prevents you from reposting copyrighted material, but allows you to tell people about the contents of that material.

A trade secret requires that there is information only known to the company, that the company has a commercial advantage by being the only one knowing it, and that the company keeps it secret. So if a company employee leaves information on a restaurant table out of negligence, that's the trade secret gone and you are free to publish or republish it.

However, if trade secrets are acquired illegally (stolen, or acquired by bribing an employee), the trade secret is still intact and posting the information would be illegal.

There may be a point when enough distribution has occured that the trade secret is lost, and there will definitely be a point where suing over the trade secret becomes pointless.

Adding due to comments: There is no assumption at all that the information wouldn't be under copyright. However, copyright prevents copying only, not the distribution of the information. If you leave your company's strategy for the next five years on a restaurant table, then there is most likely copyright and nobody is allowed to copy it - but everyone is allowed to read it, write down the contents in their own words and copy that, or just hand the paper to each of your competitors in turn without copying it.

Concerning the uncertainty: Re-distributing a trade secret or former trade secret is a dick move. The only way to get certainty what gets punished by a court and what isn't is to distribute it, get sued and wait for what the judge says.

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  • 1
    Sorry if it sounds like I'm being overly anal about this, but If I want to take your answer and use it to argue about this issue on the internet, I don't want to be that guy who is spreading unreliable information. To that end, "assuming" that the information is not protected by copyright is troublesome. Maybe if you included whether or not the issue described risks violating copyright and what about it leads you that conclusion, it would be more useful – Sam I am says Reinstate Monica Dec 28 '15 at 5:18
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    Also, the distinction between a lost trade secret and an in-tact trade secret is unclear. Does it matter if the poster of the secret is or is not the person who illegally obtained it? If not, does it matter if the poster knows whether it was legally obtained? What if they suspected that it might have been illegally obtained, but didn't care enough to make sure. How is "enough distribution" defined? I feel bad being this anal, but your answer still does leave me with an uncomfortable bit of uncertainty. – Sam I am says Reinstate Monica Dec 28 '15 at 5:23
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In the United States, the answer depends on how much leaked information you've received and what you mean by "reposting."

The First Amendment protects further commentary on the leaks.

If you mean talking about the leaked information, sharing bits of the leaked information, or publishing commentary about the leaked information, you're right in the heartland of First Amendment-protected activity.

A similar issue arose in Bartnicki v. Vopper, 532 U.S. 514 (2001), where a radio host played and discussed an illegally intercepted recording of two union officials talking about contract negotiations with a local school board. The union officials sued the radio host, but the Supreme Court said that "a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern."

So if we can treat the cards, their leak, or Wizards' response as a matter of public concern (and there's a good argument for each), then it seems clear that you're free to discuss, write about, and even publish portions of the leaked content, as part of your commentary.

Copyright law prohibits publishing too much of the leaked material.

But if you're talking about a wholesale republication of the leaked material, you're in much more dangerous territory. Those materials are protected by copyright, which means you are generally not free to make or publicly display copies of them. "Fair Use" is, of course, an exception, but the complete republication -- especially outside the context of commentary on newsworthy events -- is probably not fair use.

In Harper & Row v. Nation Enters., 471 U.S. 539 (1985), a magazine obtained a leaked copy of President Ford's memoirs and published an article with about 300 words's worth of quotes lifted directly from the book. The book published sued for infringement, the magazine asserted a fair use/First Amendment defense, and the Supreme Court ruled for the publisher, holding that the "generous verbatim excerpts" took the article outside of fair use.

In your case, then, the question would be how much of the leaked material you could copy or publish. It would be tough to argue that you can just blast out copies of the leaked material in full, with or without accompanying commentary. But even publishing small portions could be problematic. In Harper & Row, the Court noted that the answer depends not on the quantity of material copied (300 words from a 200,000-word book, or 0.15%, in that case) but the "qualitative nature." Because the magazine copied material about Ford's mental process surrounding his pardon of Nixon -- "the most interesting and moving parts of the entire manuscript" -- the Court found that the substantiality of the copying weighed against a finding of fair use.

I don't know Magic well enough to say, but it's conceivable that publishing images of specific cards, classes of cards, or other materials could be more problematic than others, while publishing images of the backs of the cards or their packaging would probably be less controversial. (Again, all of this assumes the copies are happening as part of broader commentary on the issue. Outside that context, we're probably just talking about a routine copyright violation.)

Bottom line: You should feel free to discuss or describe or the leaked information, but the more of it you copy or publish, the farther from safety you roam.

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Is it illegal to leak that information to the public?

No.

If so, then if enough people know that information, does it become legal to spread that information?

Yes.

If information is in the public domain it is not private and, therefore, not leak-able. This might apply if, say, certain information is on a publicly accessible web site.

Company trade secrets are often protected by an agreement of some sort. Like a confidentiality agreement or a non-disclosure agreement. If a company hires employees to work on products or projects sensitive to disclosure, they will often have them sign such an agreement to protect company secrets. This type of agreement might or might not be governing the circumstance you describe.

Sometimes (just background FYI, not saying it's true in this case) intentional leaks used strategically as a marketing tactic to generate publicity.

Disclaimer. I am a lay person. I am not an attorney. Do not take my answer as a substitute for the advice of a licensed attorney. Do not take any action based on what I have written. If you need help with a legal matter, please seek the advice of a lawyer.

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  • First clarification request: If 1. The company intends to release a product in the near future, and 2. You're pretty sure that the company doesn't want information about that product to be leaked(including stuff like photos or screenshots of the product), then Is that information in public domain? – Sam I am says Reinstate Monica Dec 23 '15 at 20:22
  • Second clarification request: I am mostly interested in cases where the a person who is reposing the information has not signed a non-disclosure agreement with Wizards. Assuming that we have a case as described by my previous comment, Is a contract violation the only way this can be in violation of the law? – Sam I am says Reinstate Monica Dec 23 '15 at 20:25
  • 1. Public Domain is a term of art that has a specific meaning which I did not intend for this question. So, I should have said generally available to the public. 2. I am not aware of any other mechanism by which one can become liable for disclosing information which they come across unless they breach either a non-disclosure agreement or they violate a court order. Or, perhaps, it's governmental classified information which doesn't apply here. Read my disclaimer! – Alexanne Senger Dec 23 '15 at 21:24
  • I said "not publicly known" right in the question. I also told you the specific scenario that I was interested in. Someone leaked a future product to a closed group, people from that closed group leaked that information to the public. I want to know whether they broke the law, and after digesting your answer, I still do not know. – Sam I am says Reinstate Monica Dec 23 '15 at 21:42
  • @SamIam: The answer depends on facts (which I detailed in my answer) which are not contained in your question . 1. Did they sign an agreement not to disclose? 2. What is the nature of this closed group? What does closed mean? Who are they? And what is their relationship to the company? Are they under any agreement not to disclose or otherwise? – Alexanne Senger Dec 23 '15 at 21:59

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