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Free Expression

Trade Secrets and Algorithms as Barriers to Social Justice

Various mechanisms in the current intellectual property (IP) system balance competing interests of the rightsholders with the societal needs of the public. Unauthorized copyright use is not considered infringement if the use made is “fair,” and patents require that innovations be described in detail to receive protection in order to promote the useful arts and sciences. Moreover, these types of limitations and social balancing mechanisms can be used to facilitate the use of intellectual property in a way that promotes social justice.

Although trade secret law bears the moniker of intellectual property, it lacks sufficient limits and balancing mechanisms to address the needs of the public. In contrast to copyright and patent law, trade secret law has expansive subject matter breadth, minimal requirements, no formal application process before acquisition, and encourages creators not to disclose information. While intellectual property law is intended to optimize social welfare by guarding against both the under- and
over-protection of information, this failing in trade secret law can ironically allow IP protection to undermine the social good in certain circumstances.

This is particularly evident with faulty criminal sentencing algorithms that predict a defendant’s likelihood of recidivism. Not only do these algorithms exacerbate the disparate impact on people of color in the criminal justice system, but they also grant a broad veil of protection from scrutiny by trade secret law. The lack of social balancing mechanisms, specifically as it applies to harmful criminal sentencing algorithms, puts trade secret law in tension with civil rights and other broader societal considerations.

In light of the disparate impact of criminal risk-assessment tools on minority defendants, the business preference for trade secret protection presents a conflict with basic obligations to protect civil rights. Altering the discussion of trade secrets to include a social balancing mechanism, as is the case in other forms of IP protection, would help to eliminate the tension by directly considering social justice in IP.