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Monday, February 29, 2016

Conflating Economic Competition with National Security

Rochelle Dreyfuss and I have posted our new article Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with National Security. The article is forthcoming as part of a symposium on U.S. Trade Secrets Policy, competition and innovation. Red Hot Chili Peppers gave us the epigraph: "Psychic spies from China try to steal your mind's elation".

In the article, we argue that national security is conflated in a concerning way with economic competition to the detriment of knowledge creation and flow. here is the abstract:

In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade secrecy protection in new regional trade agreements This article asks about the effects these developments on innovation. The article examines the rhetoric the government is using to promote its trade secrecy agenda, uncovering that the argument for greater protection appears to derive at least some of its power from xenophobia, and most importantly, from a conflation of private economic interests with national security concerns, interjecting a new dimension to the moral component of innovation policy debates. Analyzing recent empirical research about innovation policy, we ask about the effects of these recent trends on university research and on private market innovation, including entrepreneurship, information flows and job mobility. We argue that, paradoxically, the effort to protect valuable information and retain the United States’ leadership position could disrupt information flows, interfere with collaborative efforts, and ultimately undermine the inventive capacity of American innovators. The article offers suggestions for reconciling legitimate concerns about national security with the balance intellectual property law traditionally seeks to strike between incentivizing innovation and ensuring the vibrancy of the creative environment. We conclude that a legal regime aimed at protecting incumbency is not one that can also optimally foster innovation.

Download while hot! Thoughts most welcome!

Posted by Orly Lobel on February 29, 2016 at 10:31 PM | Permalink

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