Category: Innovation


Upcoming Online Symposium on Professor Anupam Chander’s The Electronic Silk Road

Silk Road coverDanielle and I are happy to announce that next week, Concurring Opinions will host an online symposium on Professor Anupam Chander’s The Electronic Silk Road: How the Web Binds the World Together in Commerce. Professor Chander is a professor at U.C. Davis’s King Hall School of Law. Senators, academics, trade representatives, and pundits laud the book for its clarity and the argument Professor Chander makes. He examines how the law can facilitate commerce by reducing trade barriers but argues that consumer interests need not be sacrificed:

On the ancient Silk Road, treasure-laden caravans made their arduous way through deserts and mountain passes, establishing trade between Asia and the civilizations of Europe and the Mediterranean. Today’s electronic Silk Roads ferry information across continents, enabling individuals and corporations anywhere to provide or receive services without obtaining a visa. But the legal infrastructure for such trade is yet rudimentary and uncertain. If an event in cyberspace occurs at once everywhere and nowhere, what law applies? How can consumers be protected when engaging with companies across the world?

But will the book hold up under our panel’s scrutiny? I think so but only after some probing and dialogue.

Our Panelists include Professor Chander as well as:

Paul Berman

Miriam Cherry

Graeme Dinwoodie

Nicklas Lundblad

Frank Pasquale

Pierluigi Perri

Adam Thierer

Haochen Sun

Fred Tung

And of course

Danielle Citron and I will be there too.


What Are the Limits to What Hackers Produce?

I’m writing this from an airplane somewhere over the US-Canadian border. I forgot my copy of Coding Freedom at home, and was cursing my ineptitude. But then it occurred to me that, given the subject, I could probably find a copy online. Sure enough, I downloaded a pdf via the airport wifi. (For free! – those Canadians…).

This, in the most mundane of ways, is a simple reenactment of what Gabriella Coleman writes of so compellingly in her new book. Gabriella, inspired no doubt in part by her years of exposure to hacking culture, struck a deal with her publishers. The resulting CC license gives all of us who might want to read the book more freedom to do what we want with it – read it on any device, search it, and even pull it up in an airport so we can file a nearly-too-late contribution to a terrific online discussion. Gabriella didn’t know I’d forget my book at home when she decided to negotiate the license. But she did have the sense – I assume – that she needed something more than copyright law to help her achieve what she wanted from her book. Which was in part to give to the rest of us more freedom than standard copyright law would allow.

But how far does that freedom go? This is surely one of the most important and interesting questions about this new form of making software, and the new legal forms that attend it. So that’s what I want to focus on here. One of the book’s great strengths is the spectacularly detailed and clear-eyed account that it provides of hacker culture, or at least a certain hacker culture. As it points out, this is a culture that is built upon a deep commitment to the pleasures of technology (like Ed Felten, I loved the bit on hacker humor), a ferocious conception of self-help and meritocratic ordering, and also to an overt aversion to things “political.”

As a few others have in the course of this discussion, I wonder too about the limits of a form of practical revolution that starts here. How far can this new mode of production take us, if it is characterized by technoelitism, an aversion to politics, and by a subject position that is decidedly fairly privileged and high-skilled? After all, you can’t be part of this crowd and lack access to a computer and internet connection, or be bereft of free time.


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What Drives Innovation? The State

Magazines like The Economist mock industrial policy while piling praise on the private sector. But the more one knows about the intertwining of state and market in health care, defense, telecommunications, energy, and banking, the less realistic any strict divide between “public” and “private” appears. Moreover, even the internet sector, that last bastion of venture capital and risk-taking, is more a creature of state intervention than market forces. As Mariana Mazzucato argues:

Whether an innovation will be a success is uncertain, and it can take longer than traditional banks or venture capitalists are willing to wait. In countries such as the United States, China, Singapore, and Denmark, the state has provided the kind of patient and long-term finance new technologies need to get off the ground.

Apple is a perfect example. In its early stages, the company received government cash support via a $500,000 small-business investment company grant. And every technology that makes the iPhone a smartphone owes its vision and funding to the state: the Internet, GPS, touch-screen displays, and even the voice-activated smartphone assistant Siri all received state cash. The U.S. Defense Advanced Research Projects Agency bankrolled the Internet, and the CIA and the military funded GPS. So, although the United States is sold to us as the model example of progress through private enterprise, innovation there has benefited from a very interventionist state.

VC’s and other financiers exaggerated their role in promoting innovation in order to get capital gains tax breaks. And while they retreat ever further from taking risks on game-changing advances in productivity, the tax breaks endure, starving the state of the revenues it needs to continue subsidizing innovation. The California Ideology gradually undoes its own material foundations, but its adherents are unfazed. They are content to reap the benefits of past decades of government investment. From Silicon Valley to Wall Street, seed corn is the tax-cutters’ favorite meal.

X-Posted: Madisonian.

The “Markets” for Top “Talent”

IncomeGrowthThe stories we tell ourselves about inequality matter. As incomes of the top 0.1% and top 0.01% grow ever more stratospheric, “low wage workers are paid less now than they were from the 1950s-1970s.” Is this just, as Steve Schwartzman suggests, the natural consequence of globalization? Tim Harford suggested as much in the FT last week:

The uncomfortable truth is that market forces – that is, the result of freely agreed contracts – are probably behind much of the rise in inequality. Globalisation and technological change favour the highly skilled. . . . [A]t the very top, winner-take-all markets are emerging, where the best or luckiest entrepreneurs, fund managers, authors or athletes hoover up most of the gains.

The most important word in that paragraph is “luckiest.” What deserves comment is Harford’s argument that “freely agreed contracts” are deciding who is “hoovering up” the most. He elaborates a bit later:
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Tumblr, Porn, and Internet Intermediaries

In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.)

Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users.

Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is).

There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it.  (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations?

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Cardozo Law Review, China Re-Rising

Symposium on China’s Transition from Manufacturing to Innovation Economy Hosted by Cardozo Law Review’s Online Journal

NEW YORK, NY, April 29, 2013 — All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil.Cardozo Law Review de•novo’s online symposium, “China Re-Rising?: Innovation and Collaboration for a Successful Twenty-First Century” focuses  on China’s overall transition from a manufacturing to an innovation economy and how this transition affects IP policies and industries around the world.

The online symposium – located at – features articles from practitioners, industry corporate counsel, professors, and Chinese IP law specialists. Esteemed participants include Chen Wang, the Deputy Chief IP Counsel of E.I. du Pont de Nemours Company; Jonathan Sallet, a Partner at O’Melveny & Myers LLP; and Professor Peter Yu, the Kern Family Chair in Intellectual Property Law and Director of the Intellectual Property Law Center at Drake University Law School.

About the Articles:

Professor Yu discusses the slowly-begun change in discourse around China’s intellectual property system, particularly in the field of patents. He presents the reader with five key questions on the state of Chinese intellectual property law and policy. His answers suggest that the future of China’s intellectual property system is dualistic and dynamic—while massive piracy and counterfeiting does continue, this ongoing issue is balanced by China’s rise as a patent power.

Professors Murphy and Orcutt discuss China’s patent subsidy program—an aspect of China’s national innovation strategy that aims to increase domestic patents and innovation through government subsidies to pay for domestic inventors’ legal costs associated with obtaining patents. Noting that the program has been criticized for failing to fund truly valuable or innovative patents, the Authors propose a unique two-stage, three-dimensional relative value technique for the Chinese government to implement in evaluating whether to fund a given patent application through the subsidy program.

Ms. Wang and Mr. Sallet in turn criticize the Chinese government’s metric-based approach to innovation. They posit that China’s emphasis on numerical goals to domestic patenting actually hampers Chinese innovation by directing resources away from research and the development of truly valuable inventions. The Authors further discuss how China’s metric-based approach frustrates the ability of multi-national corporations to collaborate effectively with Chinese companies. They conclude by identifying steps the Chinese government can take to increase local innovation through effective international collaboration.

Professor Shao calls for a holistic perspective of the Chinese innovation economy, law, and policies. His Article offers a historical and cultural perspective that aims to make a holistic approach possible for Western scholars and practitioners, who lack the knowledge of Chinese history and culture necessary to understand the context of China’s current policies. He concludes by proposing that innovation still can, and should, be the bridge to China’s successful economic transition.

Professors Murphree and Breznitz discuss China’s innovation strategy through the lens of its failed attempts to develop globally successful technology standards. The Authors attribute these failures to fragmented production and structured uncertainty implicit in the Chinese domestic market. Despite these failures, the Authors acknowledge that Chinese companies’ participation in even failed attempts does produce tangible benefits, like receiving lower royalty rates on goods they produced.

View the online symposium at


STEM education and some more on 3D printing as general purpose tech

3D printing and its related technology is general purpose technology that can train kids for the future. I saw an example of that yesterday when I was able to visit La Jolla Country Day School where sixth to eighth grade kids on spring break were learning basic 3D Modeling and Design. Last week they worked on How to Make Musical Electronics. In the 3D modeling program, Ann Worth, an MIT School of Architecture graduate, guided the youngsters as they manipulated files of their heads so that at the end of the program they could print them. I also watched a video of two girls who had been shown how to make an amplifier and oscillator for their iPhones. Brendan Bernhardt Gaffney, UCSD was their instructor. The kids talked about trial and error, vectors and faces, and circuit boards with energy and joy. How often does that happen? If Katie Rast and her co-visionaries at FabLab San Diego have their way, much more often.

Despite some nerds are cool ideas, we still hear that kids are turned off by math and science and that there is a lack of good Science Technology Engineering Math (STEM) education. New programs may change all that. By taking an old idea like shop and updating it, a FabLab (short for Fabrication Lab) offers the chance to make learning about programing, engineering, geometry, and the jot of creation. Kids are willing to engage with formulas; start, fail, and restart projects; and work rather hard at their projects, because there is fun and an outcome for them. The spring break program I visited is called Science Technology Engineering Arts and Math, or STEAM. The University of California, San Diego and FabLab SD worked together to offer the classes (which to me is a tech transfer moment that is quite important).

In the 3D modeling program, the kids started with a series of photos, which were uploaded to 123D (a suite of 3D modeling apps by Autodesk). That service knits the images together into a file that the kids then download. In many cases there are holes in the images. As they made models of their heads, they laughed at the holes in their heads. They then used a program called Blender to learn about filling the gaps. That meant some kids were telling me about vectors, others about textures, and all showed off as they pulled, stretched, and edited files to create the proper rendering of their heads. After that, they grabbed files for the bodies. A range of animal bodies will be virtually sliced up to make the new creature upon which the heads will attach. When asked what they might do next, these folks talked about how metals, glass, and other materials would be awesome so they could make really functional items. Some talked about being able to have a home printer that could make solar cells to power other printers. When told that these ideas were already being pursued, eyes popped out of their heads, and then grins covered their faces at thoughts of what’s next (and I think a little pride at predicting where the technology could go).

The skills learned in these programs will persist even as the machines and software are superseded. Who knows? If I had access to this sort of tech training combined with math and science education, I might have stuck with that path. Even if I didn’t, I’d have a greater ability to play with and understand the technology that surrounds us. In short, congratulations to La Jolla Country Day School, UCSD, FabLab SD, Ann Worth, Brendan Bernhardt Gaffney, and Katie Rast for pursuing ways to make STEM fun and for kids. The ideas here remind me of Julie Cohen’s work about play and its importance in her book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice. As Rast said on a panel at SxSW, computer labs were often seen as saviors for education especially in low income areas, but they often gathered dust. The key is to have maker spaces that work for the group’s context. A lab need not have the latest technology. If the technology is connected to people in meaningful ways, then the magic can happen. I agree. The magic of playing with technology, understanding what you can do with it, and seeing new possibilities will fire the desire to learn and create. As Neil Gershenfeld (a leader in the Maker and Fab movement) put it, this is a liberal, as in liberating, art. But don’t take my word for it. As one kid told me at lunch, adults’ brains are not as good at learning as kids’ brains, and kids like showing what they can do. Now that is education.


Innovate or Innovation, Your Assurance of Meaningless Assertions

In the words of Portlandia, innovation is over. Or as another era of hipsters might say, innovation is dead anyway (Swingers). Take a look at the posturing of European Publishers Council and Google over the recent German bill to force search to pay for material longer than a snippet.

“As a result of today’s vote, ancillary copyright in its most damaging form has been stopped,” Google said in a statement. “However, the best outcome for Germany would be no new legislation because it threatens innovation, particularly for start-ups. It’s also not necessary because publishers and Internet companies can innovate together, just as Google has done in many other countries.”

Translation: Insert resistance is futile jokes as needed, but you will work with us and win! We all will win, because we innovate and belong to the Church of Innovation (located somewhere south of San Francisco and north of San Jose).

“With the right legal conditions and the technical tools provided by the Linked Content Coalition, it will be easy to access and use content legally,” the European Publishers Council said in a statement (PDF) on Friday. “This will mean that publishers will have the incentive to continue to populate the internet with high-quality, authoritative, diverse content and to support new, innovative business models for online content.”

Translation: We have no idea what is next. But please give us more time, protection, and money. We promise we will come up with something new.

Confession: Have I invoked innovation. Of course. It is seductive. It is too seductive. Pam Samuelson is a fan of Orwell’s Politics and the English Language, as is Neil Richards, and as am I. I must confess that I have sinned. I slipped away from Orwell’s mandate and went with the easy, meaningless word. I hate when that happens. I will try and stop.

Of course, what other word or words would say more is the next struggle. The German law says only a snippet is allowed. Right. What’s a snippet? Someone says innovate. I say, “Right. What’s innovate?” I hope to find out. If I am lucky, I may be like Bill Cosby’s Noah and come up with an answer no one else thought of. Hmm is that innovat… Khannn!!!!

Enjoy the clip


MOOCs in law schools

Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?

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Calling Klingons and Romulans, Cloaking Now Available (Sort of)

According to the BBC, “Scientists have succeeded in “cloaking” an object perfectly for the first time, rendering a centimetre-scale cylinder invisible to microwaves.” OK this method works only for microwaves, works only in one direction, and not for visible light. Nonetheless, “The design principles that make the cloak work in microwaves would be difficult to implement at optical wavelengths. But microwaves are important in many applications, principally telecommunications and radar, and improved versions of cloaking could vastly improve microwave performance.”

The advance is cool to me in that the ideas started in 2006 from a paper on “transformation optics.” with an implementation of the idea coming that year as well. So the science fiction world of true cloaking is not here, but the fact that a few folks did some basics science, a test application followed fast, and now a full version of the microwave idea is in place within seven years is rather great. The practical side of the work may mean that funds are coming quickly from industry and the government. I am not sure which. Still I love the idea that one of the oldest fantasy/sci-fi bits of magic, invisibility, is a little closer to reality.