The Detritus of Our Days
A past and future of trade secrets
Klara Kofen
What is a secret? A secret is that which no one knows.
—Moondog, “Two Quotations in Dialogue”
2029
Palestinian Bionic Limb Technology
A team of biomedical engineers at the Ramallah Institute of Advanced Prosthetics develops a breakthrough nerve-interface system allowing amputees to control prosthetic limbs with unprecedented precision and sensory feedback. Lead researcher Dr. Layla Mansour announces that key aspects will remain trade secrets, particularly proprietary neural mapping algorithms and the specific composition of biocompatible coating materials. The Mansour Method had been used successfully in clinical trials with forty-seven patients, including war injury survivors. The Palestinian state’s IP office confirms the decision to keep manufacturing processes confidential while the technology enters production.
2046
The Renationalization of Trade Secret Laws under the Patriot Security Act
Following a series of cyber-espionage incidents targeting American tech companies, the Patriot Security Act mandates the renationalization of all trade secret protections, prohibiting cross-border sharing of proprietary technologies. This law marks a significant retreat from international cooperation, setting the stage for escalating global political fragmentation.
2068
The Rise of Al-Muqatara, the Nomadic Financial Sect
After decades of decentralized financial systems, a Sufi-inspired Islamic sect known as Al-Muqatara establishes dominance over nomadic trade routes across the Middle East and North Africa. They create a fusion of old-world caravan trading and blockchain-based currency exchange, operating without any physical banks. Their cryptographic exchange protocol, “ZakatCoin,” is based on Islamic almsgiving principles, and the algorithm for managing these decentralized coins is protected as a trade secret, closely guarded by the Sufiyana Ulema, the sect’s spiritual leaders. Industrial espionage becomes near impossible as the currency is dispersed through oral codes, blending Arabic, Berber, and Fula languages.
2085
Mnemonic Cartels: Certitude Protocols [Provisional]. Annotation: Marginal transmission. Ecological vector: Amazon Basin. Informational sediment. Provisional method: Knowledge as botanical recursion.
2112
Harmonia’s Singing Spies
The desert nation of Oculum falls victim to an act of industrial espionage as a group of singers from Harmonia, a nomadic musical micronation, steals trade secrets encoded in the design of Oculum’s air filtration system. The spies claim that by harmonizing certain frequencies, they were able to extract digital files embedded in the vibrations of Oculum’s industrial equipment. This act of espionage becomes known as “The Harmony Heist.”
2132
Gobi Algorithmic Resistance: Spectral Dialect Encoding Marginal Report. Oral cryptography. Quantum-linguistic drift. Performative knowledge transmission. Resistance through embodied memory.
2161
The Sacred Glyph Corporation: Rebuilding Ancient Coastal Defenses
This advertising pamphlet from the Sacred Glyph Corporation describes the use of ancient coastal defense designs, fused with cutting-edge proprietary engineering techniques, in the construction of anti-flood barriers around the low-lying temple cities of Southeast Asia. This movement reflects a sharp turn toward traditionalism, where modern technology is intertwined with reverence for ancient cultural monuments and ideologies.
2167
Symbiotic Intelligence Corps: Microbial Mnemonics. Annotation: Genetic information vectors. Bacterial memory protocols. Transmission beyond human linguistic boundaries. Mutagenic knowledge cartography.
2178
African Union Cybersecurity and Trade Secret Enforcement Act
The act, passed by the African Union after a decade of increasing technological consolidation, creates a uniform regulatory framework for protecting digital trade secrets in a world in which water-based bioindustries have become targets for cyberattacks. It consolidates African nations’ policies on the handling of proprietary data and water resources.
2205
“Water of Life: The Genetic Proprietorship of Algae-Based Combat Stimulants”
This classified report from the Chinese military, uncovered by Russian cyberagents, reveals the tightly guarded trade secrets behind the production of algae-based combat stimulants, which enhance endurance for soldiers deployed in flooded battle zones. The innovation, rooted in bioengineering, has been fiercely protected in a world where algae farms have become the dominant source of both food and bioweapons.
2215
The Velocity Manifesto: Recipes for Rapid Technological Change
Published as a manifesto among neo-urgentist collectives, this underground document circulates methods for rapidly advancing climate adaptation technologies. The author, Maeve O’Leary, details techniques for reverse-engineering proprietary biotech innovations, operating in legal gray zones within the fragmented post-national IP landscape.
2217
Dust Memory Collective: Particulate Epistemologies Provisional Note. Desertification archive. Microscopic information carriers. Environmental reconstruction protocols. Knowledge as geological drift.
2223
The Vatican Encyclical on Ecological Warfare and Biotech Ethics
A papal encyclical strictly condemns the use of biotechnology trade secrets in warfare, particularly targeting the use of genetically engineered bacteria and viruses designed to thrive in wet environments. In territories adhering to traditional religious authority, this document becomes the foundation for laws banning the exploitation of bioengineered weapons.
2244
Fiona Li, “Hydro-Growth Networks: The Underground Economy of Water Farming Patents”
This investigative article, published in the Asian Consolidated Journal of Trade, exposes the dark underbelly of hydrogrowth networks, where water-farming patents and trade secrets are illegally traded across fragmented global markets. These patents govern techniques for maximizing agricultural output in water-scarce regions, reflecting the ongoing dry-world crisis.
It is a strange time to be thinking about law. About its history. And it feels like a lifetime ago that speculating on its future seemed like a viable activity. A genocide is being live streamed to our phones, its architects broadcasting their work with complete impunity, its supporters, having leisurely taken off their gloves, handing over rifles with their bare hands; any international law framework originally set up to prevent such a thing from happening is disintegrating in the face of such brazen brutality. There once was a promise that more data, more communication, more exposure would produce action. If only people knew, they would act. “I know well, but all the same…” seems to be the dominant mode of interacting with reality. Alenka Zupančič has written how this disavowal “doesn’t deny facts but gladly announces knowing all about them, and then it goes on as before.”[1] Meanwhile, corporate secrecy has become a form of governance, rights are rescinded in real time, and AI slop is turning “feeds” into “troughs.” Against the backdrop of this messily woven tapestry of raw and synthetic bits of (largely horrific) reality, legal sci-fi writing feels almost quaint, and exploring whether a given historical narrative is constructed from “worthy” or “less worthy” sources feels weirdly anachronistic. Facts schmacts.
Yet this essay began as an act of speculation. Working from Webster’s Timeline History: Trade Secret, 1624–2007—an algorithmically generated compendium of historical fragments published by the ICON Group—I produced, with help from several large language models, a series of animated diagrams and short fictions imagining the future trajectories of trade secret law. But what is writing history but speculation in reverse—a way of tracing patterns across fragments and making order out of what was once noise? The historian, like the speculative futurist, works from debris: half-legible archives, faulty memories, lost patents, algorithmic guesswork. Both look for structure in the scatter, the same epistemic labor that an algorithm carries out. What follows began as a consideration of the above imagined timeline of trade secret law stretching from 2029 to 2244, before turning back on itself to ask how history is assembled in the first place. The exercise became less a forecast than an excavation, a small archaeology of secrecy and authorship, of the architectures of knowledge that survive their own obsolescence. These speculative futures now read as funhouse mirrors: distorted reflections of how we already build narratives from the fragments that remain.
In attempting to write a speculative future history of trade secret law, I maintained the legal framework of that law as it stands today, while pushing the world further along on the axes of climate change, geopolitical transformation, and the tension between tradition, on the one hand, and innovation and acceleration, on the other. OpenAI’s ChatGPT proved to be a relatively beige law-fi collaborator; Anthropic’s Claude, in comparison, proved more detail-oriented. Benjamin Breen’s “The Historian’s Friend,” a ChatGPT plugin designed to aid historians with primary source research, curiously proved to be the most adept at spinning future legal histories.
The resulting fictional entries appear to suggest new possibilities for trade secrets: as protectors of the unknowable, as bridges between traditional and emergent knowledge systems, as guarantors of collective rather than individual rights, but also as modes of protection, or new executive forms of law, called forth by new cosmologies. Trade secrets emerge not simply as a legal technology—a point of convergence between sovereign power, economic interest, moral order, and technological design—but as epistemic boundary objects, technologies that mediate different ways of knowing and protecting knowledge.
In the Wild West of contemporary intellectual property law, trade secrets have become a peculiar sanctuary for corporate power, a realm where any information can be consecrated as property and thereby protected indefinitely from public scrutiny. This legal architecture, already straining under the weight of conventional innovation, now confronts an entirely new species of creation: the predictive outputs of AI systems trained on vast datasets, primarily drawn from publicly accessible materials authored by individuals. But it is not only the outputs that are enclosed. Entire internal pipelines—training data composition, fine-tuning methods, model weights, feature extraction techniques, even emergent behaviors claimed to hold economic value—are now protected as trade secrets.[2] It bears asking: What exactly is being protected here when publicly accessible training data is processed by pre-existing algorithmic operations? When the entire process—from business model to prompt to trade information—is black-boxed, the only value adhering to it is generated by the fact that an outdated legal framework protects it? This opacity becomes a way of claiming ownership over computational transformations of public inputs, essentially enclosing the void between raw data and processed output.
In a curious, recursive, Klein bottle–esque twist, the source that gave birth to this essay, Webster’s Timeline History: Trade Secret, 1624–2007, is itself protected by both patent and trade secret law. On 4 September 2027, the patent that protects the process used to collate the Webster’s Timeline History series will expire. Yet, unless an employee of the ICON Group reveals the data set from which the books were assembled, or the algorithm used to organize the data, the trade secrets behind this “disruptive” publishing project will, of course, remain safe.[3] And so both ICON’s algorithmic black box and the public dataset it mined to create this chronicle about knowledge protection will remain, perhaps forever, protected by a trade secret.
ICON Group International, Inc., the brainchild of Philip M. Parker—a professor of management science and an early devotee of artificial intelligence and machine learning—is a company with a publishing wing dedicated to bringing “underserved topics” to researchers interested in niche material, to those without access to physical or digital research libraries, and to anyone who is not good at the internet.[4] ICON’s patented process allows those audiences to order books for $28.95 apiece—the price remaining the same whether downloaded as a PDF or printed on demand. Behind this project lies an economic rationale known as “the long tail,” which stipulates that the internet and digital distribution allow for significant profits to be made by selling many low-demand products over a long period of time, rather than relying on a smaller set of high-demand items.
It is easy to dismiss Webster’s timeline as a useless source for trade secret law. It doesn’t cross-reference well with established sources, and its algorithmic origins render its organizational logic opaque and its selection criteria unknowable. By conventional standards, it fails as an entry point into the topic. It begins with a 1624 entry on the English guilds and proceeds quickly to 1789, the year in which Nicolas Leblanc committed suicide after the seizure of his sodium carbonate factory during the French Revolution left him penniless and his trade secrets at the mercy of his competitors. I could not find many of Webster’s sources in my cursory analysis, and, overall, the sourcing is inconsistent: some entries provide extensive citations, while others offer none at all. Even when sources are provided, they range from academic publications to Wikipedia entries and obscure, difficult-to-verify materials. The book mentions none of the landmark court cases from trade secret history: 1837’s Vickery v. Welch (chocolate), 1868’s Peabody v. Norfolk (“sacred” factory machinery), 1984’s Ruckelshaus v. Monsanto (democracy).[5] It devotes a significant amount of words across its thirty-nine pages to “Scientology versus The Internet.”[6] Given this lack of correlation with any established history of trade secrets, which makes the book’s data points more like clusters of false positives in an MRI scan, what would the target audience—someone “not good at the internet” and without prior knowledge of the subject matter—learn from this algorithmically generated timeline? And would it be any different if a human had assembled it?
I spent the last year of my history degree trying to understand the Austro-Hungarian Empire’s censorship laws, creating a new historical lens through which to examine this novel sovereign body by analyzing a list of books banned there between 1867—when the empire was founded—and 1901.[7] At first glance, this imperial catalogue had about as much apparent value as a Webster’s Timeline History. It was organized chronologically, but each year was further sorted alphabetically according to either the first or the second name of the author, or the title of the volume, or an important word in the title, or the language it was written in, or something else. A piece of detritus, of gray literature, from an old empire. And yet, after many hours of analysis, a narrative emerged of an empire caught in a romantic rebound, filling the aching void left open by the Catholic Church. Whereas heresy was once hidden, it was now pornography and revolutionary texts written in minority languages that had to be suppressed to keep the hegemon intact.
The censorship office operated as one arm of an empire attempting to reconcile liberal constitutional principles with the complex heritage of a sprawling mosaic of jurisdictions, ethnicities, religions, languages, and sovereignties inhabiting different temporalities. When drafting the 1867 constitution, the jurists were facing an epistemological crisis, as Natasha Wheatley describes in her book The Life and Death of States. Unlike France, which forged its constitution through revolution, or Britain, which continued into the modern era without a written constitution, or Germany, which could draw on a narrative of national unity, the Austro-Hungarian Empire presented a unique challenge[8]. Here was “a layer cake of sovereign history”—as Wheatley calls it—that demanded a new kind of constitutional imagination and emerged as an unprecedented laboratory for legal innovation.[9] Following on from the old dictum that “code is law,” a constitution is a technology: it structures the flows of power and establishes what forms of political life become possible. The legal theorists of the day faced a conundrum: How could they craft a framework from this “nonsingular, conglomerate” sovereignty’s medieval and early modern legal syntaxes that would suit a new global reality?[10] The question was not simply about which laws to keep or discard, but about something more fundamental: how to use existing legal languages to articulate entirely new forms of political existence. In this crucible, law became not just a set of rules but a technology for imagining novel political architectures.
Constitutions and legal debates—polished, purposeful, designed to be read—are conventional primary sources for historical narratives. But gray literature and other forms of bureaucratic detritus, such as badly organized censorship catalogues and algorithmic compilations, reveal history’s texture: the confusion of implementation, the friction between ideal and practice, the accidental patterns that emerge when systems meet reality. Historical writing, some might say, is an exercise in speculative archaeology. A historian moves through the junkyard of the past, searching for the butterfly’s wings that set larger machines in motion. What renders a source “worthy” of being a load-bearing element in the construction of a narrative? And what does one do with “the rest”? The seemingly absurd biases, alternative interpretations, mumblings, obscure fragments of hagiographies from religions no longer extant, those “bits” that quietly accumulate in the margins. Human and non-human data collators generate similarly unruly constellations of information—and in that strangeness, patterns surface that polished, purpose-built histories tend to conceal.
Considered a “neglected orphan in economic analysis,” trade secret law has received relatively little attention, and its history is patchy and haphazard, even within a single jurisdiction.[11] It is still possible, though, to discern a pattern in these fragments, one that reflects broader economic, moral, and political transformations.
In his vision for rendering specialist knowledge accessible, Parker stands in a long line of technocratic dreamers, going all the way back to the founders of the Royal Society, which was established in 1660. These seventeenth-century men sought, among other things, to “change industry as radically as Copernicus and Kepler had changed astronomy” by realizing Francis Bacon’s vision for learned men to further the advancement of science.[12] For the Royal Society, this would involve sharing the knowledge of crafts- and tradesmen, the “histories of trades” as Bacon called it, with the public.[13]
But there were impediments to this ambition. Within the guild system, which had emerged in western Europe in the eleventh century, “knowledge of craft processes and mechanical inventions came to be considered intangible property separate from craft products and from the labor required to produce them. … Such proprietary attitudes are manifest in … the burgeoning of craft secrecy to protect craft knowledge from theft and the development of the privilege or patent as a limited monopoly on inventions and craft processes.”[14] From the thirteenth century onward, guild regulations maintained remarkably consistent structures, including the apprentice-journeyman-master hierarchy, monopolistic control over craft knowledge, and the strict provisions against sharing trade secrets.[15] In certain cases, these provisions even governed intra-guild interactions. The 1408 Articles of the Bladesmiths, for example, proscribed a master from teaching a journeyman whom he had hired “the secrets of his trade, as he would his apprentice, on the pain aforementioned”—a fine of six shillings and eight pence.[16] While the guild system, with its highly formalized protocols of secrecy, began its decline in the sixteenth century, there remained well into the seventeenth a deeply “ingrained reluctance [among] craftsmen to divulge their knowledge to outsiders for fear of putting their economic basis at risk.”[17]
It was this relatively unchanged and culturally embedded system of confidentiality with which the trades project of the Royal Society needed to contend, and the gentlemen who formed its inner circle soon found out that craftsmen were in fact unwilling to share their secrets with enthusiasts.[18] For who was to say that these aristocratic “reformers” would not simply turn specialist knowledge into another form of enclosed property? And so, before long, the Royal Society found their utopian dream shattering against well-crafted walls of silence. Reticence to share technological discoveries even came from within the heart of the Royal Society, and the dream of changing industry—in the same way that the discovery of heliocentrism had changed astronomy—eventually had to be abandoned.[19]
A slightly more rogue but persistent approach to breaking the monopoly on trade secrets was taken by Louis XIV’s First Minister of State, Jean-Baptiste Colbert. Faced with the challenge of the Sun King’s insatiable demand for luxury mirrors—an extravagance that was rapidly depleting state funds—Colbert turned to Murano, whose glassmakers held a virtual monopoly on the trade.[20] Their techniques were zealously protected by the Great Council of Venice, who threatened death if these trade secrets were divulged.[21] Undeterred, Colbert conducted what Venice considered industrial espionage on a grand scale, luring skilled Murano glassblowers and their families to France with promises of wealth and safety from threats of assassination.[22] This maneuver not only enabled the creation of Versailles’s hall of mirrors but also led to the founding of the Saint-Gobain glassworks, which, 316 years later, produced the glass for the iconic pyramid of the Louvre in Paris.
While the guild system would not meet its end until the early nineteenth century, stories like these can be seen to herald the system’s slow decline and ultimate demise. The industrializing world and its courts of law became increasingly hostile to contracts restricting the mobility of skilled employees and their knowledge. But for the longest time, what we know now as “intellectual property” had been the domain of the craft guilds.[23] Into this vacuum of a moral code governing business conduct—ripped open by the gradual decline of the guilds—stepped trade secret protection.
The first recorded case in the US took place in Massachusetts in 1837, when John Vickery took Jonas Welch, who had perfected a method for making chocolate, to court for passing on the secrets of his art to someone else after having sold his chocolate factory to Vickery. The plaintiff assumed that he had purchased exclusive rights to this knowledge, and eventually the court decreed that the defendant had breached the sales contract. It is possible to read the case as symptomatic of its historical moment, occurring as it did on the cusp between the declining guild system (and its transatlantic manifestations) and the emerging capitalist system. Whereas in the age of guilds, “the egoism of the individual [was] restrained by the collective ethics of the community,” the 1940s scholar of antitrust law Rudolf Callmann writes, “the good morals of the business man in the beginning of modern capitalism are the moral concepts of the Protestant sects, the certificate of which guaranteed that the members were not living ‘without calling’ or ‘idly in their calling,’ that ‘they never asked two prices for the commodities they sold.’”[24] The birth of trade secret law is brought about by this shift, which sees the powerful mechanism of mutual regulation abandoned for a misplaced belief in self-regulation.
From Murano’s glassmakers to the Massachusetts chocolate war, trade secrets emerge as a lens through which we can understand how regimes of knowledge, value, and social organization undergo change. In the transition from the guild system to industrial capitalism, trade secrets, which evolved out of an earlier social formation bound by communally held religious duties, were transformed into legally protected individual property. Yet their essential function remained constant; they created zones where knowledge could be simultaneously protected and productive, hidden and valuable. This paradox—of knowledge that derives its worth precisely from restricted circulation—would become increasingly central as trade secret law evolved to encompass virtually any form of information deemed valuable by virtue of its secrecy.
Fast forward to 2019. A gigantic new development is being erected across from a shuttered Toys “R” Us warehouse in Midlothian, Texas, financed by $10 million in tax breaks. Once the deal is done, and local opposition neutralized, Google lifts its invisibility cloak to reveal a new data center. When asked about energy and water use, Google’s lawyers invoke trade secret protection, claiming disclosure would reveal too much about their technology.[25] The same legal shield is deployed by Google (and also Palantir, Oracle, and Apple) to resist FOIA requests, even protecting their “organizational diversity data” from public scrutiny.[26] As I am making the final edits to this essay, history’s most pathetic (and arguably ugliest) overlord is suing Sam Altman for stealing trade secrets. Elon Musk’s company xAI claims that OpenAI lured away a few of its former employees, siphoning off the confidential source code and business strategy that powers Grok—the chatbot whose alignment layer is tuned, with unsettling devotion, to mimic Musk’s own opinions.[27]
While significantly propelled by the 2016 Defend Trade Secrets Act, a mutation of trade secret law has been in the making since the 1970s, when neoclassical economics started seeping into legal discourse, and trade secret law gradually fused with intellectual property law.[28] “Secrets” became a peculiar type of exclusive proprietary information in a world shaped by the Chicago school of economics, which holds that private, exclusive control of information is always better than open or publicly supported information production. This claim, in turn, relies on a process known as the “internalization of externalities”: assigning ownership to resources and capturing the benefits of their use, leading to more “efficient,” i.e., “good,” outcomes.[29] “Efficiency” has thus replaced nineteenth-century “morality,” like “morality” once replaced religious dogma, as Kapczynski writes.
The scope of this exceptional space has expanded dramatically. Whereas nineteenth-century trade secret law protected discrete technologies, today’s version can encompass virtually any information deemed valuable by virtue of its secrecy: a combination of steps or ingredients, a customer list, a diagram or a set thereof, algorithms, a recipe, an array of tools, a business plan, a database, a design, a manufacturing process, “compilations,” marketing strategies, patterns, price data, product specifications, software, plans, designs, “data.” Depending on how effective your cult is at financing its operating costs through the promised ascendance, transcendence, or transformation of its followers—and how apt it is at legally defending its spiritual niche in the market—even religious information can constitute a trade secret.
Yet these epistemic boundary objects exist in a paradoxical state of fragility. Their value derives from a speculative reality—the possibility that mere access to the secret would provide a competitor with a “more than trivial” advantage. Should said competitor lawfully obtain the product and successfully reverse engineer it through proper means—independent discovery, analysis of publicly available materials—the law offers no protection. Unlike patents, which trade disclosure for a guaranteed term of exclusivity, trade secrets offer no protection against independent discovery or lawful reverse engineering. Only violation through improper means allows the legal infrastructure to return the secret to its owner. Unlike patents, which have to be made public at the time of application, and grant the owner protection for a limited amount of time (usually twenty years in the United States), trade secrets remain secret indefinitely, unless reverse engineered by legal means, or revealed by a journalist, or stolen by a wayward employee.
As Kapczynski observes, “Because other modes of intellectual property do not offer control over data itself, and in some respects have been narrowed in recent years, trade secret law has taken on new importance” for software and data protection, a shift that Sonia K. Katyal has traced in the context of source code secrecy.[30] The strange nature of trade secrets make them particularly appealing as a form of protection for private companies, both from the public and the state. Recent developments in AI have pushed this logic to its limits: unlike copyrights and patents, AI-generated inventions can be protected as trade secrets without requiring human authorship, provided they have economic value and confidentiality is maintained. Companies can now claim trade secret protection over AI outputs—optimization algorithms, strategic recommendations, or data relationships—that emerge from machine learning systems in ways that may exceed human comprehension.[31] Can a secret exist when its legal owners recognize its value but cannot fully understand its content?
We have been “at a threshold” for a while. And even without the recent, very recent, very very recent, and imminent changes in “AI technology,” broadly construed, information technology has already tightly woven its way into the way we relate to one another, to the world, to property, to community. These changes have, however, accelerated the need for legal innovation and fundamentally different design approaches. Wendy Hui Kyong Chun, among others, has written about the need for algorithmic justice.[32] Legal theorists, following on from Lawrence Lessig, have written up plans for open-source futures that cut through corporate enclosures like capitalists once cut through the guild doors.[33] Activists, researchers, designers, and artists have thought, researched, and written toward the creation of a digital commons, a “public,” this time perhaps without the political shortcomings of their analogue ancestors. As far as alternative forms of knowledge not currently protected from infringement are concerned, we can only hope that the people and places that create and steward them will gain the power to resist occupation and exploitation.
Tiny nuclear power plants will soon pop up in rural areas, close to rivers, ponds, and lakes, to power the large data centers that tech corporations require to supply the energy needed for complex computation.[34] When this happens, private companies will have achieved a very real separation from public infrastructure and the sovereign bodies that govern them, and the data-crunching version of Francis Bacon’s ivory towers will have been achieved.
For my part, I am thankful for the LLMs that speculate about the future with me, a game my personal pessimistic leanings make me less adept at. In “our” law-fi vignettes, technology merged with the organic systems created by rising sea levels or expanding deserts, and novel forms of knowledge protection arose to safeguard old and new sovereignties, both static and nomadic. Que será, será.
What started as a game of legal science fiction ends, predictably, in the dust of the archive. The future, it turns out, looks a lot like the past: a pile of partial records, guarded codes, and well-defended silences. Every age deposits another layer of secrecy: guild, corporation, black box. To write history is simply to dig through those layers, arranging the residue into something that looks like sense. Future historians will have to sift through the detritus of our days to identify which shavings, bits, flakes, layers of sediment, refuse, or ashes should be considered worthy runes for the interpretation of causal relations. Perhaps they will find evidence of the fact that, at some point in our time, knowing history actually prevented us from repeating it. That would be nice, wouldn’t it? Perhaps they will find a copy of Webster’s Timeline History: Trade Secret, 1624–2007.
- Alenka Zupančič, Disavowal (Cambridge: Polity Press, 2024), p. 2.
- Armin Ghiam and Kate Pauling, “A Practical Guide to Protecting AI Models with Trade Secrets,” Federal Bar Council Quarterly, vol. 32, no. 4 (June–August 2025). Available at federalbarcouncilquarterly.org/a-practical-guide-to-protecting-ai-models-with-trade-secrets. See also PatentRenewal.com, “When to Patent and When to Keep AI Innovations Secret,” 3 October 2025. Available at tangibly.com/when-to-patent-and-when-to-keep-ai-innovations-secret.
- Patents and trade secrets typically operate as opposites: patents disclose in exchange for exclusivity, while trade secrets protect through concealment. In practice, however, algorithmic or data-driven inventions often blur this boundary. Even where a process is nominally patented, the underlying training data or implementation details can remain undisclosed, protected as trade secrets. The “black box” of ICON’s publishing system occupies that gray zone—its method is public in outline, but opaque in operation.
- Parker has been quoted as saying, “If you are good at the Internet, this book is useless.” See Noam Cohen, “He Wrote 200,000 Books (but Computers Did Some of the Work),” The New York Times, 14 April 2008.
- For summaries of and lead opinions from Vickery v. Welch, 36 Mass. 523 (1837), Peabody v. Norfolk, 98 Mass. 452 (1868), and Ruckelshaus v. Monsanto, 467 U.S. 986 (1984), see courtlistener.com/opinion/6533447/vickery-v-welch, courtlistener.com/opinion/6541505/peabody-v-norfolk, and courtlistener.com/opinion/111227/ruckelshaus-v-monsanto-co, respectively.
- [n.a.], Webster’s Timeline History: Trade Secret, 1624–2007 (San Diego, CA: ICON Group International, 2008), p. 18.
- I consulted Catalogus Librorum in Austria Prohibitorum: Verzeichniss der in Oesterreich bis Ende 1895 verbotenen Druckschriften mit Ausschluss der politischen Tages- und der slavischen Literatur, ed. Anton Einsle (Vienna: Verlag des Vereines der österr.-ungar. Buchhändler, 1896) and a supplementary volume, Supplementum I, ed. Carl Junker (Vienna, Verlag des Vereines der österr.-ungar. Buchhändler: 1902), which listed books banned between 1896 and 1901. Catalogus Librorum is available at viewer.onb.ac.at/1320A9B6.
- Natasha Wheatley, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton, NJ: Princeton University Press, 2023), p. 3.
- Ibid., p. 7.
- Ibid., p. 6.
- David D. Friedman, William M. Landes, and Richard A. Posner, “Some Economics of Trade Secret Law,” Journal of Economic Perspectives, vol. 5, no. 1 (Winter 1991), p. 61.
- Kathleen H. Ochs, “The Royal Society of London’s History of Trades Programme: An Early Episode in Applied Science,” Notes and Records of the Royal Society of London, vol. 39, no. 2 (April 1985),” p. 129.
- Sean Bottomley, “The Origins of Trade Secrecy Law in England, 1600–1851,” The Journal of Legal History, vol. 38, no. 3 (October 2017), p. 256.
- Pamela O. Long, Openness, Secrecy, Authorship: Technical Arts and the Culture of Knowledge from Antiquity to the Renaissance (Baltimore, MD: The Johns Hopkins University Press, 2001), p. 89.
- Ibid., pp. 88–89.
- For the Articles of the Bladesmiths, see Memorials of London and London Life in the XIIIth, XIVth, and XVth Centuries: Being a Series of Extracts, Local, Social, and Political; From the Early Archives of the City of London, A.D. 1276–1419, selected, translated, and edited by Henry Thomas Riley (London: Longmans, Green, 1868), p. 570. Available at archive.org/details/b2485881x/page/568/mode/2up.
- Karel Davids, “Craft Secrecy in Europe in the Early Modern Period: A Comparative View,” Early Science and Medicine, vol. 10, no. 3 (January 2005), pp. 343. Davids draws on William Eamon, Science and the Secrets of Nature: Books of Secrets in Medieval and Early Modern Culture (Princeton, NJ: Princeton University Press, 1994), p. 344.
- Kathleen H. Ochs, “The Royal Society of London’s History of Trades Programme,” pp. 146–148.
- On the reticence within the Royal Society toward sharing technological information, see Kathleen H. Ochs, “Royal Society of London’s History of Trades Programme,” p. 147. On the abandonment of the initiative, see Sean Bottomley, “Origins of Trade Secrecy Law in England,” p. 256.
- “Venetian glass was superior to the glasses of northern Europe in part because the Venetians had access to superior materials, including Syrian soda ash (sodium carbonate), made by burning seaweed that provided ballast for Venetian ships from the East.” Pamela O. Long, Openness, Secrecy, Authorship: Technical Arts and the Culture of Knowledge from Antiquity to the Renaissance (Baltimore, MD: The Johns Hopkins University Press, 2001), p. 90.
- Joanna Kostylo “Commentary on: Venetian Statute on Industrial Brevets (1474),” in Primary Sources on Copyright (1450–1900), ed. Lionel Bently and Martin Kretschmer. Available at copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_i_1474. See also Geoffrey Edwards, Art of Glass: Glass in the Collection of the National Gallery of Victoria (Melbourne: National Gallery of Victoria, 1998), p. 59.
- Warren C. Scoville, “Technology and the French Glass Industry, 1640–1740,” The Journal of Economic History, vol. 1, no. 2 (November 1941), p. 156.
- Pamela O. Long, Openness, Secrecy, Authorship, p. 5.
- Rudolf Callmann quoted in Amy Kapczynski, “The Public History of Trade Secrets,” UC Davis Law Review, vol. 55, no. 3 (February 2022), p. 1386. Available at lawreview.law.ucdavis.edu/archives/55/3/public-history-trade-secrets.
- Elisabeth Dwoskin, “Google Reaped Millions in Tax Breaks as It Secretly Expanded Its Real Estate Footprint across the U.S.,” The Washington Post, 15 February 2019. Cited in Amy Kapczynski, “The Public History of Trade Secrets,” p. 1372.
- Amy Kapczynski, “The Public History of Trade Secrets,” p. 1372.
- Nick Robins-Early and agencies, “Elon Musk’s xAI Accuses OpenAI of Stealing Trade Secrets in New Lawsuit,” The Guardian, 25 September 2025.
- Amy Kapczynski, “The Public History of Trade Secrets,” pp. 1392–1393.
- Harold Demsetz lays these ideas out in what I find to be a poetic appraisal of property rights: ’No harmful or beneficial effect is external to the world. Some person or persons always suffer or enjoy these effects. What converts a harmful or beneficial effect into an externality is that the cost of bringing the effect to bear on the decisions of one or more of the interacting persons is too high to make it worthwhile, and this is what the term shall mean here. ‘Internalizing’ such effects refers to a process, usually a change in property rights, that enables these effects to bear (in greater degree) on all interacting persons.” See Harold Demsetz, “Toward a Theory of Property Rights,” The American Economic Review, vol. 57, no. 2 (May 1967) p. 348.
- Amy Kapczynski, “The Public History of Trade Secrets,” p. 1409. See also Kapczynski, “The Law of Informational Capitalism” The Yale Law Journal, vol. 129, no. 5 (March 2020), pp. 1503–1504. Available at yalelawjournal.org/review/the-law-of-informational-capitalism. Sonia K. Katyal’s analysis is found in Katyal, “The Paradox of Source Code Secrecy,” Cornell Law Review, vol. 104, no. 5 (July 2019). Available at scholarship.law.cornell.edu/clr/vol104/iss5/2.
- Ivan Moreno, “Trade Secrets Emerge as Path for Cos. to Protect AI Works,” Law360, 6 May 2025. Available at law360.com/ip/articles/2336427.
- Wendy Hui Kyong Chun, Discriminating Data: Correlation, Neighborhoods, and the New Politics of Recognition (Cambridge, MA: The MIT Press, 2021).
- Lawrence Lessig, “Open Code and Open Societies: Values of Internet Governance,” Chicago-Kent Law Review, vol. 74, no. 3 (June 1999). Available at scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3170&context=cklawreview.
- Goldman Sachs, “Is Nuclear Power the Answer to AI Data Centers’ Power Consumption?” 23 January 2025. Available at goldmansachs.com/insights/articles/is-nuclear-energy-the-answer-to-ai-data-centers-power-consumption.
Klara Kofen is an artist, dramaturg, writer, and researcher based in London. Recent projects include Fake & Extinct, performed in 2025 at Live Works at Centrale Fies in Dro, Italy, and at Terrafilia Fest, Spain, organized by TBA21 and Museo Nacional Thyssen-Bornemisza, Madrid); Admiror, or Revolutionary Sentiments, performed in 2024 at the Guggenheim Museum, New York; and Dead Cat Bounce, performed between 2022 and 2024 at a number of venues, including Nottingham Contemporary, Arts Catalyst, and Eastside Projects, UK. She is the artistic director of Waste Paper Opera. For more information, visit klarakofen.cargo.site.
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