Category: Innovation

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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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Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.

The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.

Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.

In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.

Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.

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Injecting Transactional Skills Into the First Year

American legal education is biased toward litigation. In response, and to give our students a taste of the kind of experiential education that Temple is known for, we launched a new first year course last fall: Introduction to Transactional Skills. Now that the dust as settled, and I’ve had a chance to push a few writing projects down the road, I thought I’d blog a bit about ITS, and our experience in bringing a skills course into the first semester of law school.

Some basics.  We launched ITS as an intensive, two-week, “mini-course” smack in the middle of the fall semester.  It was mandatory for all first-year students, and graded pass/fail (with students receiving transcript notations for extraordinary effort). ITS mixed lectures (delivered by course co-leader Ed Ellers), and simulations (largely designed by co-leader Eleanor Myers).  Each simulation was devoted to a skill – interviewing a client, negotiating an agreement, drafting a contract – and taught in a small group of around 20 students. (Faculty members volunteered to lead these small groups, without receiving teaching credit.  More evidence in support of this post.) We paired the students in each small section – they negotiated “against” another team of two from a different small section repeatedly during the simulation.

As the snapshot to the right illustrates, we used a custom-designed webpage to organize the course.  Students got their assigments online, read background materials, and submitted their contracts using web forms, making quick feedback (typically, 8 hours to turnaround) possible.

We framed ITS around the legal foundations of a small business: a restaurant.  Students represented either a chef or an entrepenuer.  After interviewing their client (played by an upper-year student) students negotiated and then drafted a term sheet for the partnership, and then an employment contract.  On the last day, lawyers from downtown Philadelphia judged the students in a surprise negotiation exercise.  The video below provides a snapshot of the experience.

Overall, the course worked well at accomplishing its main goal: exposing students to transactional lawyering.  It also (for many students) significantly increased their interest in taking additional transactional courses, built their confidence and skills, and gave them a concrete idea for professional development opportunities during their summers.  The best reviewed day – by far – was the final day’s negotiation in front of lawyers.  Given the added pressure of an outside presence, the students rose to the occasion and shined.  Outside evaluation also helped to combat the fatigue that students felt from the compressed environment, and the demotivating effects of the pass/fail system.

What didn’t work well? The timing. It came too late in the semester (because of the ABA’s re-education re-accreditation site team visit.) Second, we could have provided less time in lecture and more time in skills training (the ratio was about 30:70, but it could have been 20:80).  There were some hiccups with the submission system.  But the biggest problem from my perspective was scale. Because we decided to launch this for the entire first year class (220 day students, and we replicated the whole course this spring for our evening division), the project was unwieldy to organize, and it consumed a ton of time and law school resources. Scale also prevented us from  providing individualized written comments on every submitted contract. But such problems are to be expected if you want to teach to the whole schoolhouse.

Notably, the course would have been plainly impossible to put together on the fly if Temple didn’t already have a well-established second and third year program of transactional education — the Integrated Transactional Program.  ITP was a model for the skills exercises, provided us with the experience in drafting client scripts, and was our recruiting ground to land seasoned students to play the chefs and entrepreneurs.

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If God Had Wanted Man to Fly…Turns Out Someone Is Giving Us Wings

Calling China Mieville and Perdido Street Station fans. TechCrunch reports on Jarno Smeets, a man who wants to fly with wings, and he has done it! Apparently Wii and HTC devices are part of the invention. He had a test flight in January. And, as the video below shows, he flapped and took flight. I hope this is not a hoax (and even if it is I am rather happy right now and enjoy the idea of winged flight). As Tech Crunch invoked “Orville, Wilbur, and Leo Da Vinci,” I wonder whether we will see a rush of hobbyists improving on Smeets idea and winged flight clubs opening up. Given that I distrust biking to work because drivers and cyclists fail miserably in their respect for the laws and each other around where I live, I love the idea of flying to work without an engine. Probably far off as a dream (though I will bet that someone at Google will try soon). Anyway enjoy and remember you can fly perhaps now without pixie dust.