node created 2020/05/22
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.