Machines as the New Oompa-Loompas: Trade Secrecy, the Cloud, Machine Learning, and Automation.
Free Public Lecture hosted by the Technologies, Law and Society Group.
Professor Jeanne Fromer - NYU Law Faculty
Roald Dahl’s novel Charlie and the Chocolate Factory is well-known as a dark fantasy in which five children win a visit to a whimsical candy company. Less conspicuous is the legal issue of trade secrecy driving the novel’s plot. Secrecy is not indigenous to fictional representations of the candy industry, but is widespread throughout real-world businesses too. An investigation of the need for secrecy in the commercial sphere raises fundamental questions about the role of legal protection for misappropriations of secrets when actual secrecy seems to be paramount and about the relationship between trade secrecy and patent law. In Dahl’s novel, the Oompa-Loompas are the ideal solution to Willy Wonka’s competitive problems. Although the Oompa-Loompas appear to be fictional, they are in fact proliferating in contemporary life in the form of computing machines filled with software and fed on data. These computers, software, and data might not look like Oompa-Loompas, but they function as Wonka’s tribe does: holding their secrets tightly and internally for the businesses for which these machines are deployed. Computing machines were not always such effective secret-keeping Oompa-Loompas. At least three recent shifts in the computing industry—cloud computing, the increasing primacy of data and machine learning, and automation—have turned these machines into the new Oompa-Loompas. While new technologies enabled this shift, trade secret law has played an important role here as well. Like other intellectual property rights, trade secret law has a body of built-in limitations to ensure that the incentives offered by the law’s protection do not become so great that they harm follow-on innovation—new innovation that builds on existing innovation—and competition. In light of the technological shifts in computing, the incentives that trade secret law currently provide to develop these contemporary Oompa-Loompas are excessive in relation to their worrisome effects on follow-on innovation and competition by others. These technological shifts allow businesses to circumvent trade secret law’s central limitations, thereby overfortifying trade secrecy protection. Trade secret law might be changed—by removing or diminishing its protection—to restore balance for the good of both competition and innovation.
The Technologies, Law and Society Group, School of Law, Trinity College Dublin engages in research confronting the challenges and opportunities presented by the interface of technology in our society today. https://www.tcd.ie/law/research/technologies-law-and-society.php
Professor Jeanne Fromer of NYU law faculty is co-director of the Engelberg Center on Innovation Law and Policy. She specializes in intellectual property, including copyright, patent, trademark, trade secret, and design protection laws. Her scholarship studies trade secret and copyright laws in light of growing uses of artificial intelligence; the ways that copyright and trademark holders take intellectual property into their own hands; the claiming systems for design protection pursuant to copyright, design patent, and trademark laws; and the protectability of fashion designs in intellectual property.
This event has been postponed from the original date of 23 March 2020 due to travel restrictions as a result of COVID-19. The event will be rescheduled.