Note: This page covers information specific to Massachusetts. See the Trade Secrets overview for more general information.
Massachusetts has not adopted a version of the Uniform Trade Secrets Act (UTSA), which is discussed in the Basics of a Trade Secret Claim. Like the UTSA, however, Massachusetts law creates civil liability for acquisition of trade secrets through improper means. In addition, Massachusetts is one of the few states that imposes criminal liability for improper acquisition of trade secrets - unlawfully taking a trade secret is included in the definition of the crime of larceny and can result in imprisonment.
Massachusetts law defines a trade secret as "anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement." Mass. Gen. Laws. ch. 266, § 30. From a practical perspective, this definition of "trade secret" is similar to that discussed in Basics of a Trade Secret Claim.
Unlike the Uniform Trade Secret Act, Massachusetts law does not use the word "misappropriation." Instead, it lists a number of activities that trigger civil liability:
- embezzling a trade secret;
- stealing or unlawfully taking a trade secret;
- carrying away, concealing, or copying a trade secret; and
- obtaining a trade secret by fraud or deception;
Mass. Gen. Laws ch. 93, § 42. It is not clear whether Massachusetts law prohibits publishing a trade secret while knowing that it was acquired by a source through improper means. Undoubtedly, you could be liable for publishing a trade secret if you personally obtained it through any of the improper means listed above.
The Massachusetts criminal statute relating to trade secrets prohibits the following activities:
- stealing a trade secret;
- obtaining a trade secret through false pretenses with an intent to defraud someone; and
- converting, concealing, unlawfully taking, carrying away, or copying a trade secret with an intent to steal or embezzle.
Mass. Gen. Laws. ch. 266, § 30. It does not look like the law makes it a crime to publish a trade secret, so long as you do not personally obtain it through any of the improper means listed above.
If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies:
- Criminal Penalties: Unlawfully taking a trade secret (defined above) constitutes the crime of larceny in Massachusetts and is punishable by up to five years imprisonment, or by a fine of up to $25,000 and up to two years imprisonment. See Mass. Gen. Laws ch. 266, § 30.
- Damages: A court can make a defendant pay money damages to the plaintiff in an amount up to twice its actual damages. See Mass. Gen. Laws ch. 93, § 42
- Injunctive Relief: Massachusetts law gives a court the power to restrain the defendant from "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using or disposing of a trade secret, regardless of value." See Mass. Gen. Laws ch. 93, § 42A. It appears that a court could order you not to publish a trade secret if it found that you had unlawfully taken it from the plaintiff. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. For details, see Publishing Trade Secrets.