AUTHOR=Asay Clark D. 

TITLE=Software's legal future

JOURNAL=Frontiers in Research Metrics and Analytics

VOLUME=Volume 7 - 2022

YEAR=2022

URL=https://www.frontiersin.org/journals/research-metrics-and-analytics/articles/10.3389/frma.2022.980744

DOI=10.3389/frma.2022.980744

ISSN=2504-0537

ABSTRACT=Software's history is also its future. Its history has been defined by abundance and scarcity, and its future will be, too. In the 1970s and 80s, perceived software scarcity led U.S. legislators to formally apply intellectual property (IP) protections to software. Later, a different kind of scarcity—a lack of access to source code—led the free and open source software (FOSS) movement to flip IP protections on their head in an effort to better promote abundance. That movement proved wildly successful, with today’s software industry based on vast amounts of FOSS that both organizations and individuals collaboratively build.  
Abundance and scarcity will also define software’s future, but in different ways. The FOSS movement's abundance is in the midst of a significant commercial phase. That sometimes means that competitors bring a scarcity mindset that conflicts with the norms that made that movement so successful. IP concerns at times derail what may otherwise be even greater abundance. And because so much software is moving into the Cloud, trade secrecy may become the industry’s most important IP form to the extent the industry abandons open innovation.
The software industry’s growing dependence on artificial intelligence (AI) is likely to contribute to these trends. The software industry is increasingly synonymous with the AI industry, as more and more software companies either rely on AI or provide AI products to the public. As with all software, these AI technologies are increasingly provided from the Cloud, where trade secrecy is not only possible, but often preferable. But trade secrecy may be even more likely in the AI context because much of the magic in implementing AI lies in the know-how to piece it together from available FOSS resources, decades-old AI techniques, and data. Hence, to the extent that software and AI technologists spurn open innovation in favor of a scarcity mindset, trade secrecy is likely to become its dominant legal protection. Web3 technologies may eventually change some of these trends. But for now, increasing secrecy seems the most likely outcome. I conclude by arguing that this shift to secrecy is likely preferable to other forms of IP.