Hidden in Plain Sight

Abstract

Software developers have long tried to appropriate the value of visible features and functions of their programs. Historically, they used copyright to do so, but then shifted to patenting as copyright protection for methods of operation waned. Given newfound difficulties patenting software functions, developers have one more place to turn: trade secrets.

Trade secrets have always protected the hidden aspects of programs, but can they be used to protect visible or easily discernible program features? This article suggests a new way developers might use trade secrets to protect visible program features. It examines how they might do so, relying on traditional case law and confidentiality precautions used to keep secrets. In doing so, the article considers whether and how such protection could be achieved in theory and in practice.

The article then asks how software licensing would change if trade secret protection of discernible features were achieved. It considers how software might be delivered (including software as a service), the potential for trade secret trolls, the role of open source development, and the potential effect on innovation incentives.

Finally, the article considers the alternative normative views associated with this new type of software protection.

Keywords: software, patent, copyright, trade secret, look and feel, NDA