It seems that almost everyone who can use a computer is familiar with Google Earth, the Google software featuring satellite imagery from around the globe. Perhaps one of your less tech-savvy relatives has called you to the computer to look at satellite images of your house. If researchers at Georgia Tech have their way, you may eventually be able to watch yourself looking at those satellite images on Google Earth. Companies holding trade secrets would do well to remember that not just Big Brother is watching anymore – your competitors are too – and you should be ready for it.
The images used by Google Earth are currently static, and may not have been updated for up to three years. The Augmented Google Earth project seeks to solve both these problems by using closed circuit television feeds to back-project video onto the flat surfaces currently in Google Earth. The current plans for the technology involve using data from the videos to realistically animate people, traffic, and even cloud and bird patterns. However, the demonstration video shows both a Georgia Tech football game and a pickup soccer game in a park, indicating that live video would be possible.
Though the project is far from implementation, if and when it became active, it could have deep implications on the law of trade secret. The Google Earth privacy section states: “Google Earth contains only information that is readily available from both commercial and public sources. For example, this same information is available to anyone who flies over or drives by a piece of property.”
However, in DuPont Nemours & Co. v. Christopher, the Fifth Circuit held that it was a misappropriation of trade secrets for the Christopher brothers to fly over DuPont’s open-roofed plant and take pictures of process equipment. The court held that “one may not avoid [reverse engineering or independent research] by taking the process from the discoverer without his permission . . . when he is taking reasonable precautions to maintain its secrecy.” DuPont had not built the roof of the plant to facilitate construction, but the court found that the threat of industrial espionage via aerial photography is an act that would not ordinarily be anticipated, so DuPont did take reasonable precautions despite the open roof.
So far, the rarely updated static images on Google Earth have done little to help individuals discover trade secrets (though it has helped reveal some national secrets). But if publicly available, instantly updating video feeds of any area with a closed-circuit TV feed become the norm, the standard for reasonable precautions would likely shift to impose a much heavier burden on the secret-holder. Companies would be aware that their plants would most likely be able to be broadcast on Google Earth via security, traffic, or other CCTV cameras, and would reasonably have to anticipate that a competitor could see construction, incoming trucks, and other potentially secret-revealing footage. For example, imagine if company A licensed a unique product from company B for use in their process. The competitor could use the live traffic feature of Augmented Google Earth to follow the truck from B’s plant to A’s site, revealing a large part of their trade secret-protected design.
This could have the effect of requiring companies to spend more on obscuring their trade secrets from increasingly ubiquitous cameras, if they could be protected at all. As a result, currently valuable trade secrets could become less attractive than other IP protections in some contexts. If and when the Augmented Google Earth project reaches full implementation, companies holding trade secrets would do well to remember that not just Big Brother is watching anymore – your competitors are too, and you should be ready for it.
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