papers.ssrn.com
:
The Paradox of Source Code Secrecy
"-- Today, the government relies on machine learning and AI in
predictive policing analysis, family court delinquency proceedings,
parole decisions, and DNA and forensic science techniques, among other
areas, producing a fundamental conflict between civil rights and
automated decisionmaking. Ground zero for this conflict, I argue, has
become the murky, messy intersection between software, trade secrecy,
and public governance. In many cases of automated decisionmaking,
algorithms – and the source code that informs them, are hidden from
public view, even though they implicate core constitutional protections
of due process, individualized justice and equal protection. However,
because they are often protected as trade secrets, they can remain
entirely free from public scrutiny.
This article argues that the constitutionally-inflected conflict that we
now face is, in no small part, attributable to a core failure of our
system of intellectual property to address, definitively, the boundaries
of software protection and the implications for source code secrecy. In
a world of privatized decisionmaking, the largely consistent move
towards closed code in software sectors, has a number of deleterious
results for the public, particularly in the age of algorithmic
dominance. However, this Article argues that source code also carries a
paradoxical character that is peculiar to software: the very substance
of what is secluded often stems from the most public of origins, and
often produces the most public of implications. And it is the failures
of intellectual property law that has made this possible. First, as I
show, courts have shifted the boundaries of protection for software
under both copyright and patent law, further amplifying the
attractiveness of trade secrecy. Second, the law has been willing to
entertain an unique – and paradoxical-- overlap between copyright,
patent, and trade secrecy, even though the three regimes have opposing
public goals. Copyright and patent law are oriented towards disclosure,
trade secrecy the opposite. While this overlap of protection in software
seemed, at first glance, to be a good thing for innovation policy, it
has proven deleterious for the larger public, particularly criminal
defendants and lower income populations, who are now increasingly
governed by an invisible hand that they can no longer investigate or
question. But, as I argue, it may also be deleterious for other
innovators, as well. The Article concludes with a brief discussion of
ways to offer greater transparency through a "controlled disclosure
regime," offering areas of reform in intellectual property, contract
law, and discovery."
