The Paradox of Source Code Secrecy

Artificial Intelligence, Intellectual Property, Copyright and Trademark and Patents

Article Snapshot

Author(s)

Sonia Katyal

Source

Cornell Law Review, Vol. 104, No. 5, pp. 1184-1279, 2019

Summary

Decision-making algorithms are increasingly used in administrative law, as well as in civil and criminal justice, raising due process concerns. Source code is protected from scrutiny by trade secret law.

Policy Relevance

Courts should order disclosure of source code when this would benefit the public.

Main Points

  • Algorithms encoded in software are pervasive in public law, and are used in policing, tax audits, parole decisions, forensic science, teacher evaluations, and decisions about government benefits; however, these algorithms are little understood and may be biased.
     
  • Automated public law systems raise due process and equal protection issues, but their source code is protected from scrutiny by trade secret law; this "closed" code might harm the public.
     
  • Source code is protected by copyright and patent law as well as by trade secret law; copyright and patent law favor the disclosure of information to the public, but trade secret law supports secrecy.
     
  • Ordinarily, creators who withhold their work from the public cannot profit from copyright.
     
    • Fair use and other copyright rules limit authors’ rights to block public use of their works.
       
    • Software developers release only object code to the public, keeping source code secret.
       
  • Software developers often choose trade secret protection rather than patent protection.
     
    • Trade secret protection is not limited in duration.
       
    • Patent protection requires scrutiny of an idea by examiners.
       
    • Federal courts limit the scope of patent protection for software.
       
    • Secrecy may protect against security-related risks like malware and viruses.
       
  • Governments often rely on private-sector developers to supply automated decision-making systems protected by trade secret law; also, the government can claim trade secret protection as an exemption from the Freedom of Information Act.
     
  • Keeping source code secret raises questions of accountability and oversight; a discovery order against the government typically includes only information within the government’s control, so a defendant may not obtain source code held by a private software developer.
     
  • Governments and courts can address accountability problems with intellectual property protection through common law and regulatory reform.
     
    • A sui generis copyright regime for software could be created, offering a menu of options ranging from full to partial release of source code.
       
    • Procurement law could be reformed to require firms that supply software to public entities to disclose source code.
       
    • Municipalities and other public entities should use more open-source code.
       
  • Trade secret protection should be limited under a regime of "controlled disclosure."
     
    • Litigants should describe claimed trade secrets precisely to exclude processes already known to the public.
       
    • Courts should penalize bad faith trade secret claims.
       
    • Court orders could allow analysis of source code by designated experts in litigation, but protect it from public release.
       
    • Courts could order release of source code in the public interest.
       

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