Category: Innovation

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Symposium on Madhavi Sunder’s From Goods to a Good Life, September 11-13

This week Concurring Opinions is hosting a symposium on Madhavi Sunder’s From Goods to a Good Life (Amazon) published by Yale Press which offers a preview. Madhavi’s work has pushed how many colleagues and I think about intellectual property. I am honored to organize this discussion.

I have more to say about the book, but to whet your appetites, I offer this quote:

The full cultural and economic consequences of intellectual property policies are hidden. We focus instead on the fruits of innovation—more iPods, more bestsellers, more blockbuster drugs—without concern for what is being produced, by whom, and for whose benefit. But make no mistake: intellectual property laws have profound effects on human capabilities…

The symposium will include contributions from Mike Carroll, Laura DeNardis, Brett Frischmann, Mike Madison, Mark McKenna, Frank Pasquale, Zahr Said, Lea Bishop Shaver, Jessica Silbey, and Molly Van Houweling.

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SOPA, PIPA and some truth about activism

As folks start to claim they saved the Internet and rally for alleged ways to keep the Internet open for all, I want to call out something Rep. Issa said at Stanford in April. Step one, and to me the but-for moment, in stopping SOPA and PIPA was the security and CS community speaking (which was rare) about just how dangerous (“A potpourri of dumb things” – Issa at around 8:15) the bills were. Without that the activism probably could never have gotten in place. Furthermore, as I noted elsewhere, science can shift. Science is, by definition, amoral. If you build it, it will work. So expect the copyright industry to demand new things. Expect them to hire and fund studies about how to get what they want without going using “A potpourri of dumb things.” And note that Google’s recent shift in approach regarding links and alleged pirate sites shows that things change.

This is not an apolitical moment. It is deeply political, but pretends that it is not about a power shift. When Internet and tech companies swear they are there for you, be skeptical. In some senses they are. Many folks I know at Google really are interested in serving users. Many are also scientists who will pursue, as they should, the truth of what is possible. The current bus-stop tour by Reddit’s co-founder, Alexis Ohanian is political. Per the Washington Post, for him, “[T]he key issue is getting Internet openness on the minds and into the talking points of politicians in this election.”

What does openness mean? What are the politics of openness? Why do Facebook, Google, Reddit want openness? South by Southwest looks like it may have panel on disrupting DC. The description reads like an evangelic rally (a good tip that thought is replaced by faith). But to its big credit (except for saying the questions will be answered), the panel looks at some decent issues:

1. The Industrial Revolution brought about a political realignment that created the existing party system. Can the Internet do the same?
2. Beyond “openness,” what are the essential characteristics that define the Internet’s political identity? Market oriented or socially conscious? Libertarian or progressive? (Or all of the above?)
3. Politically, does the Internet most resemble an interest group (like big business or labor unions), a movement, or something we haven’t seen before?
4. Is Internet culture weakening partisanship — or making it worse?
5. Technology drives growth, but some say it also kills jobs. How do we make sure that the benefits of the Internet are widespread? Is there a consistent political viewpoint here among Internet activists, or does this break down along typical political lines?

I doubt one panel can tackle all these questions. Much will depend on the panelists and whether the panel is really open in that it has voices other than those who all agree. Nonetheless, one thing that is missing is a deeper look at the power structures and history that inform the issue. For example, the idea of realigning parties still relies on parties. And, there is an essentialism to Internet identity that is ironic at best and willfully blind and lacking irony at worst.

Have I abandoned my Google brothers and sisters? Oh perhaps, but I don’t think so. These questions were ones I raised while there. Some disliked them. Some took them seriously. The people I respected and loved the most pushed me to dig into these points. Like society, Google has many people with many views and agendas. That’s the point. With all companies and all people asserting truth, administer several grains of salt, reflect, (maybe add some lime and tequila first). For those wishing a good book on the problems with saying we know where we are going, check Professor Wendy Brown’s work, especially Politics Out of History.

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Adam Thierer on Classical Liberalism on the Net

As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says

They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)

This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.

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Ok so it was for Memorial Day but…

This link to three talks on creating, sharing, and listening to information was suggested for Memorial Day weekend. Why not use time this weekend to catch up? From the Nieman Journalism lab’s description of the events at Berkman:

First was James Gleick, talking about the ideas contained in his terrific book The Information: A History, a Theory, a Flood. Then came metaLAB’s Matthew Battles, who brought in his knowledge of the history of knowledge to talk about what it might mean to “go feral” on the Internet. And finally, earlier this week, Mike Ananny of Microsoft and Berkman spoke about the public’s right to hear and how APIs are changing media infrastructure and affecting free speech.

Automation and Jobs, cont’d

The always excellent Thomas B. Edsall has a piece today discussing the dilemmas addressed in the “jobless futures” post I wrote over the weekend. Here are some of the questions posed by “young researchers and prospective entrepreneurs at Singularity University” whom Edsall observed:

How much can wealth accumulate for a small slice of the population at the top, while large numbers of people are forced to work for ever lower pay or to drop out of the workforce altogether? For such a future society to function, would wealth need to be (coercively) redistributed from the top to those below, in order for the mass of the jobless population to survive? Who would have power and how would tax and spending policies be determined in such a radically bifurcated, automated, workless society?

These are tough questions, but at least they are the right questions. The management experts interviewed by Edsall have 19 proposals for addressing this transition.

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Network Non-Discrimination and Quality of Service

Over the past ten years, the debate over “network neutrality” has remained one of the central debates in Internet policy. Governments all over the world have been investigating whether legislative or regulatory action is needed to limit the ability of providers of Internet access services to interfere with the applications, content and services on their networks.

In addition to rules that forbid network providers from blocking applications, content and services, rules that forbid discrimination are a key component of any network neutrality regime. Non-discrimination rules apply to any form of differential treatment that falls short of blocking. Policy makers who consider adopting network neutrality rules need to decide which, if any, forms of differential treatment should be banned. These decisions determine, for example, whether a network provider is allowed to provide low-delay service only to its own streaming video application, but not to competing video applications; whether network providers can count only traffic from unaffiliated video applicationsbut not their own Internet video applications towards users’ monthly bandwidth cap; or whether network providers can charge different Internet access charges depending on the application used, independent of the amount of traffic created by the application.

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Stanford Law Review, 64.4 (2012)

Stanford Law Review

Volume 64 • Issue 4 • April 2012

Articles
The Tragedy of the Carrots:
Economics and Politics in the Choice of Price Instruments

Brian Galle
64 Stan. L. Rev. 797

“They Saw a Protest”:
Cognitive Illiberalism and the Speech-Conduct Distinction

Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski
64 Stan. L. Rev. 851

Constitutional Design in the Ancient World
Adriaan Lanni & Adrian Vermeule
64 Stan. L. Rev. 907

The Copyright-Innovation Tradeoff:
Property Rules, Liability Rules, and Intentional Infliction of Harm

Dotan Oliar
64 Stan. L. Rev. 951

Notes
Testing Three Commonsense Intuitions About Judicial Conduct Commissions
Jonathan Abel
64 Stan. L. Rev. 1021

Derivatives Clearinghouses and Systemic Risk:
A Bankruptcy and Dodd-Frank Analysis

Julia Lees Allen
64 Stan. L. Rev. 1079

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Social Search; It’s Might Be Around for a Bit

Hey! Bing is innovating! It has added social to search based on its relationship with Facebook. Oh wait, Google did that with Google+. So is this innovation or keeping up with the Joneses, err Pages and Brins? I thought this move by MS would happen faster given that FB and MS have been in bed together for some time. So did Google innovate while Microsoft and Facebook imitated? Maybe. Google certainly plays catch-up too. The real questions may turn on who executes and/or can execute better. That seems to be part of the innovation game too.

Facebook is top dog in social; Google in search. The thing they both (with MS lurking in the wings to make a big comeback (an odd thing given how well MS does as it is)) are doing is to take recommendations to a new level (with ads thrown in of course). I have tried logged in search. I must say I was surprised. To be clear, I find there is mainly rot in social network data just as there is in search. Whether I would have used Google+ had I not been at Google is unclear. Probably not. But I did. Then I searched for some law review articles and some basic technology information. WOW. The personal results at the top had links to blog posts by people whom I followed on Google + AND THEY WERE…RELEVANT. Blew my mind. My search time went down and I found credible sources faster. Will that last? Who knows? Someone may find ways to game the system, but the small experiences make me hopeful. Now to Facebook and Bing.

If Google can do well with a much smaller set of users for Google +, Facebook and Bing might do really well. After all, Facebook has the social piece and MS has some search computer science types. Whoever wins here may offer the next thing in search. I like conducting logged out searches and logged in. When logged in, I like the potential for seeing things from friends and people I trust. For example, if I start to be interested in cameras and search gives me posts by friends I’d ask anyway, that is a pretty cool result. I can read the post and call the friend for deeper advice or just use what they posted.

All in this space will, of course, cope with privacy concerns etc. But I think that this new level of relevance has the chance to co-exist with those concerns and users may flock to one of these services to have results well-beyond the current ones in search without social. In other words, let the games continue.

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Frischmann Predicts Prometheus

Thanks so much to Frank, Danielle, and Deven for inviting me to participate in this symposium. It’s a great pleasure to discuss my colleague Brett Frischmann’s timely, engaging, and important book about infrastructure.

I’m going to focus my comments on Frischmann’s theory of intellectual infrastructure and how it relates to the structure of intellectual property law. Just a few days after the release of Infrastructure, the Supreme Court handed down its decision in Mayo Collaborative Services v. Prometheus Laboratories. That case presented the question whether certain diagnostic claims were within the scope of patentable subject matter under section 101 of the Patent Act. The Court held that they were not, in a manner that is strikingly consistent with Frischmann’s theory. Hence the title of my post. But Frischmann’s theory may also go a long way toward bringing some order to an area of patent law that has long been confused.

Let’s start with the concept of intellectual infrastructure. Frischmann explains that intellectual or cultural resources can be infrastructural in the same manner as physical goods. So long as the resource is a “nonrival input into a wide variety of outputs” (275), it satisfies the characteristics of infrastructure that Frischmann so richly describes. In turn, that suggests that the case for managing the resource as a commons is strong. Frischmann then explains how this concept applies to ideas. Ideas, he writes, often are infrastructure (subject to a number of complications that I’ll put to the side). So in his view, intellectual property should protect implementations of ideas but not the ideas themselves (286). To sort one from the other, Frischmann turns to the concept of abstraction in copyright law and argues that patent law should follow a similar path.

Now consider Prometheus. The inventors in that case discovered a correlation between the effectiveness of a drug and the amount of certain metabolites of that drug in a patient’s blood. Their patent claimed a method of optimizing the dosage of the drug based on that correlation. The method was simple: (1) administer the drug; (2) determine the amount of metabolites in the patient’s blood; (3) make an inference about drug dosage based on the correlation. Doctrinally, the question before the Court was whether this amounted to a claim on a “natural law” – the correlation between drug dosage and metabolism that happens in the human body – which would be unpatentable under a long-standing exception to the scope of patentable subject matter, or a patentable application of that law.

 

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Why Do We Lack the Infrastructure that We Need?

Brett Frischmann’s book is a summa of infrastructural theory. Its tone and content approach the catechetical, patiently instructing the reader in each dimension and application of his work. It applies classic economic theory of transport networks and environmental resources to information age dilemmas. It thus takes its place among the liberal “big idea” books of today’s leading Internet scholars (including Benkler’s Wealth of Networks, van Schewick’s Internet Architecture and Innovation, Wu’s Master Switch, Zittrain’s Future of the Internet,and Lessig’s Code.) So careful is its drafting, and so myriad its qualifications and nuances, that is likely consistent with 95% of the policies (and perhaps theories) endorsed in those compelling books. And yet the US almost certainly won’t make the necessary investments in roads, basic research, and other general-purpose inputs that Frischmann promotes. Why is that?

Lawrence Lessig’s career suggests an answer. He presciently “re-marked” on Frischmann’s project in a Minnesota Law Review article. But after a decade at the cutting edge of Internet law, Lessig switched direction entirely. He committed himself to cleaning up the Augean stables of influence on Capitol Hill. He knew that even best academic research would have no practical impact in a corrupted political sphere.

Were Lessig to succeed, I have little doubt that the political system would be more open to ideas like Frischmann’s. Consider, for instance, the moral imperative and economic good sense of public investment in an era of insufficient aggregate demand and near-record-low interest rates:

The cost of borrowing to fund infrastructure projects, [as Economic Policy Institute analyst Ethan Pollack] points out, has hit record “low levels.” And the private construction companies that do infrastructure work remain desperate for contracts. They’re asking for less to do infrastructure work. “In other words,” says Pollack, “we’re getting much more bang for our buck than we usually do.”

And if we spend those bucks on infrastructure, we would also be creating badly needed jobs that could help juice up the economy. Notes Pollack: “This isn’t win-win, this is win-win-win-win.” Yet our political system seems totally incapable of seizing this “win-win-win-win” moment. What explains this incapacity? Center for American Progress analysts David Madland and Nick Bunker, see inequality as the prime culprit.

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