Investigator Calls Halo 3 Manual A Trade Secret

Back in August, gaming website Kotaku posted scans of what purported to be a leaked Halo 3 manual on their site. Not knowing if they were genuine, they put them up and let the readership decide whether to give them credence or not.

Now it seems that Internet Investigator James Young has sent Kotaku a rather odd letter. Kotaku has posted the entirety of the letter, but it's worth pulling out a few select pieces for examination:

It has come to Microsoft's attention that your website includes material which is in violation of Microsoft's intellectual property rights. Content currently residing within your computer system infringes on the trademark rights of Microsoft Corporation and constitutes an unauthorized activity relating to Microsoft computer programs.

So, first off, disclaimers: I Am Not A Lawyer and This Article Does Not Constitute Legal Advice.

Secondly, trademark infringement. This usually refers to use of a registered trademark within a certain context. These are protected to prevent companies from creating me-too products to confuse consumers.

It should be fairly obvious that this is not the case here. Kotaku didn't present these manuals as their own work, and is not, as far as I can tell, in the software development business. Trademark infringement almost never applies to journalistic endeavors, because you do not need permission from a trademark holder just to mention the trademark. This is, strangely enough, something many companies and organizations simply refuse to understand. In the past, in other endeavors, I've hard arguments with the heads of public relations departments of organizations that wanted to stop newspapers from using their organization's logo in conjunction with articles that they thought were negative. That's not what trademark protection is for. It's to protect you from others trying to pretend they are you; not to protect you from people saying bad things about you, or, in this case, to protect you from people saying things about you before you were ready to say them yourself-- as is the case here.

Moreover, the material contains proprietary trade secret information belonging to Microsoft.

That's even more interesting. A trade secret is proprietary information that relates to how a business operates, and in specific, how it maintains an advantage over the competition. An example of a trade secret might be the secret formula for Coca-Cola, or the code comprising a graphics rendering algorithm that makes Halo 3 look so pretty and shiny.

The idea that a game manual, hitting the Internet in scanned form a scant month before millions of copies of it will hit the open market for $60 a pop, could contain trade secrets, I'd allege is patently ludicrous. The descriptions of Halo 3's control scheme or fictional weapons, all of which will become public knowledge in less than three weeks, and much of which has been revealed already on or through other sources, cannot possibly constitute a basis on which Microsoft can maintain a competetive advantage. There's no way for a competitor to use that information against Microsoft. What are they supposed to do, include information from the Halo 3 manual in their own manuals? Mimic the control scheme in their own game, three weeks prior to launch?

However, let's throw all that aside and use a simple test. For information to be a trade secret, it has to be not public knowledge, confer an economic advantage, and be subject to reasonable protection.

Much of the manual contents are already public knowledge. The manual contains information on Halo 3's weapons, much of which is already posted at by Bungie itself. It contains information on Halo 3's control scheme, much of which was published in advance of the public beta, again by Bungie itself. It does not confer economic advantage-- nobody is buying Halo 3 for the contents of its manual.

Two strikes already; whether the manual was or can be subject to "reasonable protection" is probably immaterial, but you could argue that since it probably leaked from a printing house that it hasn't been subject to such protection and therefore does not deserve the status of "trade secret" on any level.

I am authorized to act on behalf of Microsoft in this matter.

Microsoft has, one would assume, a reasonably large-sized legal department. Why are they authorizing external individuals with the specious title "internet investigator" to issue poorly-thought-out takedown notices like this?

Posting of Microsoft's proprietary trade secret information as described above is not authorized by Microsoft, any of its agents, or by law. We request that you immediately take steps to remove this material from your website. If you do not act expeditiously to remove access to the infringing material, you may otherwise be liable for trademark infringement, trade secret misappropriation, and/or other remedies at law, including civil and criminal penalties.

We appreciate your cooperation in this matter. Please advise us regarding what actions you take.

Well, we've already seen what action Kotaku has taken-- they've taken this as confirmation that the manual was real, assuming the letter is.