#phi sigma

[cccarchives-blog]

This #feathursday features an illlustrated cover of the Phi Sigma Voice from 1884. View the issue in its entirety here.

[cccarchives-blog]

Happy Leap Day!

Read about Leap Year from back in the day, straight from our Phi Sigma collection. One hundred years ago, Mr. G. B. Masslich wrote a piece for The Voice documenting Leap Year from his perspective in 1916 Chicago.

Read the original piece here.

[griefisthepricewepay]

definitely just incorporated one of the ideal characteristics of an ideal brother into my core assignment for middle level cognitive development #whoops

[loraaa]

for real, it's so good to be a phi sig

[lawofficeofstephennicholson]

Are Phi Sigma Sigma's secret's trade secrets?

It's a fair question. While researching this, I came across a letter claiming a clear violation of AKA's secrets. Someone had published a pdf of the their ritual book, and AKA's attorney told them to take it down. The letter made several claims involving copyright, trademark, and trade secrets. While the trademark and copyright claims were almost definitely sound, trade secret seemed to be thrown in.

But that's not the case here. The Penny Arcade forum user, stepscloser, didn't post a ritual book or any of Phi Sigma Sigma's trademarks. The only claim they could have is a trade secrets claim.

The Threshold

Let's get technical. The tort we're talking about is called "Misappropriation of Trade Secrets". But that means that the information that was taken is, in fact, a trade secret. Lawyers call that a "threshold issue", it's something you have to analyze and determine before you can determine anything else.

So let's review the situation:

As you may remember, there is a post on the Penny Arcade forums that contains secret rituals performed by the sorority Phi Sigma Sigma. (You know, reading that back, that sounds more ominous that it is.) The post was made a year ago in November 2011. That same month, someone with that same handle added the same text to a Wikipedia talk page. Why they added it to an archived talk page, I don't know.

Legal Analysis Overview

Legal analysis is a five stage process: first you define the issue (the question you want answered), second you define the law (i.e., state the rule), third you state the facts, fourth you apply the facts, lastly you give your conclusion.

FWIW, in law school, facts are given to you. In the real world, facts are discovered through investigation and disputes are decided by a judge or jury depending on the circumstances.

Disclaimer

This is an academic exercise, not something you should rely on if you find yourself in a similar position. Do not get legal advice from people posting on tumblr. That's just asking for trouble, talk to a professional if you need or want legal advice.

Anyways...on with some academic analysis.

1. Is the content of the post a trade secret?

This is the issue, issues are phrased like questions. 'Nuff said.

2. What is a trade secret?

The Uniform Trade Secrets Act (UTSA) has been adopted by a large majority of the states, including Maryland (where Phi Sigma Sigma's headquarters are located) and Washington (where Penny Arcade is). So that's the definition that I'll be using. The following definition is from is from the Maryland Uniform Trade Secrets Act, §11-1201:

(e) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:      (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and      (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The whole act isn't very long, you may want to read it before continuing.

Or not.

Anyways, if you take a look at the definition of trade secret from the UTSA, you should note that it has three main elements: information, economic value, and actually kept secret.

3. What did Phi Sigma Sigma claim to be a trade secret?

If you look at the original post, it's one long paragraph of fairly dense info. I don't feel like being here all day, so lets just look at the first piece of information in that paragraph for right now:

Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred".

Other facts, the PA forums post was made in November, 2011. We have a post by a person with the same handle (probably the same person, but you never know) on Wikipedia that same month. You'll see why this information will become relevant in the next section.

4. Application of the law to the post

Information

The first element is that a trade secret is information. The fact that PSS secretly stands for "Philanthropic Social Society", is clearly information. It's not a formula for making things, or a pattern in the manufacturing context (though it's certainly one in the linguistic context), nor is it a compilation, program, device, method, techniques, or process. But it is information. The rest of the definition is inclusive, giving examples of the kind of information the UTSA was meant to protect, but it doesn't make an attempt to exclude anything.

But this isn't information that a person could use to make something, which is clearly part of what the UTSA is going for. However, customer lists are often protected as trade secrets, so I think it's safe to say that the information requirement is a fairly low threshold. PSS = Philanthropic Social Society is information under the UTSA.

Independent Economic Value

The next element of the definition is that the information must derive independent economic value from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use. Does Phi Sigma Sigma derive economic value from the knowledge that PSS = Philanthropic Social Society? Maybe, we'd have to look at their books to really determine that. But it's hard to figure out what economic value Phi Sigma Sigma could derive from it. If it was trademarked, sure, they sell lots of stuff with their symbols and letters. But this information can't be trademarked because it's not registered with the U.S. Patent and Trademark office. Of course, registration would prevent it from being a trade secret because then it wouldn't be a secret.

Of course, Phi Sigma Sigma probably collects dues from it's members. Depending on how they collect the due, they could argue that the dues are to pay for the secrets and that they derive economic value from the PSS = Philanthropic Social Society by making people pay to learn it. While this argument is somewhat persuasive, we do have a problem with the fact that once a person knows about the PSS connection, they can simply quit. Depending on the condition of membership, there might be a contract remedy here.

But then there is the rest of the definition: "[d]erives independent economic value...from not being generally known to...other persons who can obtain economic value from its disclosure or use." Can someone really profit from this information without the connection to Phi Sigma Sigma? Someone could publish a tell-all book, but the information simply isn't valuable except as it relates to the sorority itself. The information does give someone a competitive advantage over Phi Sigma Sigma.

For example, if I have a customer list, that list is valuable to my competitors. This is particularly true if I have to work at finding the right contacts. If a competitor gets my list, then they can go straight to the right contacts without having to work to get them. They have a competitive advantage others in the field may not.

But greek organizations don't compete like that. I know I'm a little out of the loop, but greek organizations don't seem to compete for membership on the basis of what their secrets are. Prestige may be an issue, but PSS = Philanthropic Social Society wouldn't add to your prestige if the only ones who know are your already accepted members.

In the end, this information simply doesn't have independent economic value.

The third element of the law is that the information "is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." First, whatever methods they used, failed. Of course, the cases to reach courts are ones where the secrets have been discovered, if they hadn't been discovered, there would be no case.

The point is that they only tell other members. Yes, there are over 60,000 of them, but that is beside the point. Each member has a right to know the secret rituals and such appropriate for their membership. That's kind of the point of joining a secret society, or a society with secrets. Depends on how you look at it.

However, the secret is already on the internet, and has been so for over a year. That destroy's secrecy under DVD Copy Control Assn. Inc., v. Andrew Bunner, 116 Cal. App. 4th 241. Unfortunately for Phi Sigma Sigma, once a secret is out on the internet, it's not a secret anymore.

In that case, the court rulled that the DVD Copy Control Association couldn't prevent people from posting the DeCSS program to the internet because it was not longer a secret under the UTSA. Once the secret information was posted to the interent, secrecy was destroyed (because so many people wanted to decrypt DVD's).

Here, the information has been up for over a year, on a popular forum. Part of the DMCA takedown letter (a poor way to handle the situation, because it brought more attention to the information) was posted on the front page of one of the most popular sites on the internet, with a link to the offending content. It is no longer a secret in the UTSA sense.

5. Conclusion or tl;dr

The PSS = Philanthropic Social Society fails the second element of the test because there is no way to independent economic value to the information that PSS = Philanthropic Social Society. It also fails the third element because the information has been posted to the internet and is thus no longer a secret. Because it fails these elements, it is not a trade secret under the Uniform Trade Secrets Act.

I could painstakingly go through every secret in the post, but I suspect everything will fail the second and third elements because 1) a secret handshake or a secret knock is only useful to members of the organization or because of it's connection to it. And 2) it's all out there on the internet.

It might be useful to conclude with a quote from DVD Copy Control Assn. Inc., v. Andrew Bunner:

One of the analytical difficulties with this case is that it does not fit neatly into classic business or commercial law concepts. The typical defendant in a trade secret case is a competitor who has misappropriated the plaintiff's business secret for profit in a business venture. In that scenario, the defendant has as much interest as the plaintiff has in keeping the secret away from good faith competitors and out of the public domain. But here, according to DVD CCA it has no good faith competitors. And the alleged misappropriators not only wanted the information for themselves, they also wanted the whole world to have it.

While I'm at it:

The court is troubled by the notion that any Internet user, ... can destroy valuable intellectual property rights by posting them over the Internet, especially given the fact that there is little opportunity to screen postings before they are made. [Citation.] Nonetheless, one of the Internet's virtues, that it gives even the poorest individuals the power to publish to millions of readers, [citation], can also be a detriment to the value of intellectual property rights. The anonymous (or judgment proof) defendant can permanently destroy valuable trade secrets, leaving no one to hold liable for the misappropriation.

—Judge Whyte in his opinion in Religious Technology Center v. Netcom On-Line Com., supra, 923 F.Supp. at page 1256 As quoted by DVD Copy Control Assn. Inc., v. Andrew Bunner.

[lawofficeofstephennicholson]

Why are you interested in the secrets of Phi Sigma Sigma at all? Yes, to its members, these secrets are sacred and are more than a "secret" handshake. The same can be said for any other Greek organization - all have their secrets and all have their rituals. I'm sure they would not be pleased with the details of their proceedings being posted on the internet for anyone to see. It's not about who has a legal right, it's about being respectful of a well established organization and its members.

Good question Anon. Let's make an attempt to break it down:

Why are you interested in the secrets of Phi Sigma Sigma at all?

The secrets themselves don't interest me, the legal issues do. A lawyer tried to use the DMCA to remove content that I don't think the DMCA covers. Given the power of the DMCA, it's not something I want abused.

It shouldn't be a controversial position to dislike lawyers abusing their positions and making spurious claims.

Yes, to its members, these secrets are sacred and are more than a "secret" handshake.

I respect that to Phi Sigma Sigma's members, those secrets mean a lot to them. That respect doesn't mean that I'm not going to analyze legal claims on my blog. The fact is, intellectual property is both one of the most important areas of law in the 21st century, and one of the least understood. When someone makes what I think to be a spurious claim, or confuses issues, I feel it's important to correct those mistakes.

Think about it, if people misunderstand copyright law, they're going to have a hard analyzing or understanding the policy issues when they come-up. SOPA is a good recent example. DMCA has it's problems, but SOPA was worse. Had it not been for popular websites informing the public about the proposed legislation, it might have passed by now because people don't understand the issues.

Also, why did you put the word "secret" in quotes? It genuinely is a secret handshake, Phi Sigma Sigma actively tries to prevent people from knowing it. It's not like they published a book and then tried say it's secret.

The same can be said for any other Greek organization - all have their secrets and all have their rituals.

Maybe, I don't know. I never was a part of Greek life and it wasn't a part of my university experience. Community colleges don't have these kinds of things, and UC Santa Cruz has a number of fraternities/sororities that isn't much larger than zero.

But, and I think this is important, how would anyone know if other Greek organizations have these kinds of rituals? I suspect they don't go around comparing rituals, that would destroy the whole point of secrecy. If some group doesn't stand on ceremony, who's going to notice?

I'm sure they would not be pleased with the details of their proceedings being posted on the internet for anyone to see.

Probably not, but that doesn't mean they hire lawyers to send threatening letters sent in bad faith.

It's not about who has a legal right, it's about being respectful of a well established organization and its members.

I'm a lawyer, for me it is about the legal right to discuss a legal issue that has public policy implications.

Also, I believe in being respectful to everyone, no matter how long the organization they belong to has been around. Being around for 99 years doesn't entitle someone to more respect than a 14 year old webcomic.

Should PA have taken down the content? Should Wikipedia? That's a philosophical problem. Mike and Jerry have outlined their reasons, Wikiepedia has theirs. If you want a philosophical debate on that, great. But that doesn't mean the legal issues shouldn't be addressed or discussed.

[sorority-l0ve-blog]

Phi Sigma Sigma table!

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