The Economist Notes that Patents Do Not Equal Innovation

The Economist had a recent piece about software patents and said, GASP “[P]atent issuance is a poor measure of innovation.” Amen. But wait! Don’t order yet! There’s more! “Patenting is strictly a metric of invention. Innovation is such a vastly different endeavour—in terms of investment, time and the human resources required—as to be virtually unrelated to invention.” (The applause and boos commence simultaneously).

Innovation is meaningless as well, but the first step is to admit the problem. There may be some relationship between patents and incentives to create certain things. But not all patents or all creations show a correlation to a general claim that patents equal innovation or whether innovation will occur without patents. Innovation as “Hey that rally changed the way we do things” probably can’t be identified until much after the event. Innovation as “Hey we made tons and tons of bitcoin, oh we mean cash” is easier to spot but a different metric as far as policy should be concerned. The better disposable razor or even iPhone is incremental while also important. Parsng the differences amongst what types of innovation is well-beyond a blog post. But should folks want to hurt their head and wear out their hands, please write at length. I will look forward to reading what you find.

Yep, There It Is, Amazon Embraces 3D Printing

In the mists of yore (i.e., December 2, 2013), I wrote that Amazon seems well-placed to embrace 3D printing to cut labor costs and offer same-day and/or back-catalog things, as in physical goods; now Amazon has. Similar to Amazon’s move of buying one of the major on-demand publishers of books, it has partnered with 3DLT which has been called thethe first store for 3D products. Amazon has also opened a 3D printing store-front. WaPo’s Dominic Basulto gets the point that Gerard and I have been making in our paper Patents Meet Napster, and I keep seeing in so many areas of technology. Basulto notes that just in time retail could take on a new meaning. As he puts it:

[T]he future is one in which users simply upload or download 3D design files and print them out with 3D printers. Everyday consumer products, in short, will eventually follow in the wake of plastic toys and plastic jewelry. In this radically new business model, Amazon would be selling the 3D design files and the 3D printers and the 3D printer filament, but wouldn’t be selling actual “products” as we currently think about them. The consumers would print the products, not buy the products.

Yep. That’s about right. And as Gerard and I argue, this shift will highlight questions about patents and also trademarks. Folks may want to know that the files and the materials for the things they print are safe and trust-worthy. Enter brands and enter Amazon (and eBay to be fair) which have been brilliant at setting up online trust-systems so that we can do business with random company in random place and have a high probability that the deal will occur, be as promised, and not leak our credit cards (Amazon does this by not sharing your credit card with third parties last I checked).

Now all we need is nano-goo-fueled replic– er uh, excuse me, 3D printers — and the Diamond Age will be here.

How Is Privacy Not a Class at all Law Schools?

Privacy law does not exist, but it should be taught at every law school. There is no one law of privacy. That is why I love teaching Information Privacy (Solove and Schwartz (Aspen) is the text I use). The class requires students to reengage with and apply torts, Constitutional law (First and Fourth Amendment at least), and statutory interpretation. It also lends itself to learning about sectoral approaches to regulation in health, finance, commerce, and education. Given that the idea and problems of privacy are everywhere, there are jobs in them thar hills. Yet, schools often see the course as a luxury or somehow part of IP. That is a mistake.

Schools should not pander to skills and job training demands, but sensitivity to areas of practice that have large needs is not pandering. Much of the skills, ready-to-practice rot comes from a small segment of the legal practice (i.e., big firms with huge profits who are not willing to pay for training their employees). That said, law schools tend to use the same playbook. For example, the rarified world of public corporation law is a standard part of business associations course materials. Yet according to the Economist, the number of public companies peaked at around 7,888 in 1997. Of course folks will say “Don’t teach to the bar.” Amen brothers and sisters, but why teach for a tiny portion of students in a core course? To be clear, I love teaching business associations and think it is useful, because agency and limited liability forms are so important. They are important, because being able to compare and contrast the forms for a client makes the attorney worth her pay. Grasping the beauty and nuances of the system unlocks the ability to be a true counselor. There are many, many businesses that are not, and may never become, public and that could benefit from having an attorney set up their project from the start. Privacy is similar. It reaches across many aspects of our lives and businesses.

Privacy issues come up in such a large range of practice that the course can allow one to address doctrinal mastery while also moving students beyond the silo approach of first year law. Seeing how property and trespass ideals reappear in criminal procedure, how assumption of risk permeates issues, and so on, shows students that the theories behind the law work in not so mysterious, but perhaps unstated ways. The arguments and counter-arguments come faster once you know the core idea at stake. That is the think-like-a-lawyer approach working well. It does not hurt that along the way students pick up knowledge of an area such as HIPPA or criminal procedure and technology that will make them a little more comfortable telling an employer or future client “Yes, I know that area and here’s how I’d approach it.”

It’s About Data Hoards – My New Paper Explains Why Data Escrow Won’t Protect Privacy

A core issue in U.S. v. Jones has noting to do with connecting “trivial” bits of data to see a mosaic; it is about the simple ability to have a perfect map of everywhere we go, with whom we meet, what we read, and more. It is about the ability to look backward and see all that information with little to no oversight and in a way forever. That is why calls to shift the vast information grabs to a third party are useless. The move changes little given the way the government already demands information from private data hoards. Yes, not having immediate access to the information is a start. That might mitigate mischief. But clear procedures are needed before that separation can be meaningful. That is why telecom and tech giants should be wary of “The central pillar of Obama’s plan to overhaul the surveillance programs [which] calls for shifting storage of Americans’ phone data from the government to telecom companies or an independent third party.” It does not solve the problem of data hoards.

As I argue in my new article Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding:

Put differently, the tremendous power of the state to compel action combined with what the state can do with technology and data creates a moral hazard. It is too easy to harvest, analyze, and hoard data and then step far beyond law enforcement goals into acts that threaten civil liberties. The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits. Once the government has obtained data, it is easy and inexpensive to store and search when compared to storing the same data in an analog format. The data is not deleted or destroyed; it is hoarded. That vat of temptation never goes away. The lack of rules on law enforcement’s use of the data explains why it has an incentive to gather data, keep it, and increase its stores. After government has its data hoard, the barriers to dragnet and general searches—ordinarily unconstitutional—are gone. If someone wishes to dive into the data and see whether embarrassing, or even blackmail worthy, data is available, they can do so at its discretion; and in some cases law enforcement has said they should pursue such tactics. These temptations are precisely why we must rethink how we protect associational freedom in the age of data hoarding. By understanding what associational freedom is, what threatens it, and how we have protected it in the past, we will find that there is a way to protect it now and in the future.

Radio Shack – Will 3D Printing Help It Reach 100? Maybe RS Will Be MakerLabs at Scale

Few companies last more than 50 years. The 100 year mark is even rarer. IBM stands out as a company that has done that. But who knew that Radio Shack is nearing that mark? And some are noting its possible death knell, because of the recent announcement that it is closing about 1,100 stores. The pundits have gone over the mistakes and decried Radio Shack’s inability to play n the modern tech space. I think there is hope and mistake.

Radio Shack appealed to techies. It needs to return to that. My dad made me read the basics of stereos before I could get his old stereo. It was a Radio Shack book. Mobile phones and the like are not for hobbyists. Radio Shack has been at its best helping folks who want to deal with early tech that is tipping consumer. Radios, hi-fi stereos, wires, circuits, transistors, early computers (some might recall when folks took them apart and played with them).

Given my focus on 3D printing I may be biased. Heck. Sure. I am biased. But I am pretty certain RS could re-invigorate itself if it hires relatively savvy people to help with the next wave of home tech. As Nest, 3D printing, and more mean we are automating and tinkering, RS could be a great source for parts and knowledge where no one is competing. (Unlike the mobile market). That is where RS thrives. Of course when I went to one and knew more about speaker wire than the floor person, it was clear RS has lost its way. But there’s a time to reap and sow. Now is the time to sow. RS could be a place for drone, maker, and other tech hobbyists/enthusiasts. The core community is used to online discussions and help. But as the tech goes mainstream there is a gap between I dig it but need help and brainless consumer purchase. RS should embrace that. That is value many consumers who are starting to play with this technology would love. Or at least I would.