Against Trade Secrets Protection for “Semi-Public” Databases

This article examines whether trade secrets law should be applied to protect “semi-public” databases with frontend data access that is open to the public. It argues that the incentive-based justification, whether grounded in the traditional rationale or reframed through an investment lens, does not provide a compelling basis for extending protection. The business efficiency rationale may arguably support trade secrets protection only where frontend access is restricted to a clearly defined and limited group of users. By contrast, when access is open to an indefinite public, ambiguous legal standards fail to mitigate inefficiencies and may even intensify the technological arms race between data holders and scrapers. Although deterrence could theoretically yield efficiency benefits, such an effect rests on a flawed assumption and risks suppressing activities that serve the public interest. Moreover, given the powerful and arguably overprotective alternatives already available to database holders, introducing trade secrets protection in this context risks further distorting the balance between private and public interests.