A Sociological Approach to Misappropriation

Abstract

This paper is grounded on the premise that sociological analysis can be of great benefit to trade secret law. More specifically, a sociological approach can improve our understanding of the social factors involved in the complex interplay between legal doctrine and compliance. As the first article to apply sociological analysis to trade secret law, this paper uses a group which constitutes the largest segment of the workforce, namely, Generation X and Generation Y (collectively referred to and coined in the Article as New Generation Employees) as a case study for analyzing how values and social norms influence compliance with trade secret laws. The Article examines the reported societal effects on the values of New Generation Employees. Unlike the Baby Boomers these New Generation Employees, for instance, are likely to change jobs quickly, protect and prioritize their self-interests, expect immediate gratification and rewards from employers, start their own companies, and use technology with great ease. It then discusses how the attitudes and behaviors of these New Generation Employees map closely to the circumstances that are often present in trade secret misappropriation cases. This suggests a possible upward trend in trade secret misappropriation as New Generation Employees outnumber others in the workforce. By drawing on the sociological literature, the Article, for the first time, applies theories about employee theft to trade secret misappropriation. It integrates the values of New Generation Employees with principles of equity theory, work climate theory, and societal change theory in a framework that (a) offers some insights into what motivates employees to misappropriate trade secrets, and (b) offers corresponding general preventive measures to protect trade secrets in the workplace. It also explores how New Generation Employees' values and norms could test existing legal doctrine related to trade secret misappropriation, ownership, and liability. Finally, the Article considers more broadly the importance and usefulness of studying attitudes, behaviors, and cultural influences in intellectual property. Changes in attitude about intellectual property in general might have implications for innovation, protection, compliance, and enforcement norms in the United States. The Article also posits that this kind of analysis which combines social science with intellectual property law might also be of some benefit to the frustrations United States companies experience in dealing with the foreign enforcement of their intellectual property rights.