Disclosing Big Data

Abstract

This Article reveals that the law is failing to adequately encourage producers of “big data” to disclose their most innovative work to the public. “Big data” refers to a new industrial and scientific phenomenon that holds the potential to transform diverse industries — from medicine, to energy, to online services. At the heart of this phenomenon are innovative and complex practices by which experts shape featureless digital records into valuable information products. The fact that these big data practices are unlikely to be disclosed to the public is worrisome for familiar reasons: the law generally prefers to induce technological disclosure in order to serve the goal of promoting progress. Beyond this general concern, the nondisclosure of big data practices threatens innovation in unique ways that are particularly insidious. The cause of this problem, and possibly its resolution, lies in the interplay between big data and intellectual property law — a nexus that scholars have not explored until now.