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An article in Slate claims:

While legal automation will be a boon for those who can’t afford representation, it’s bad news for lawyers. The industry is already in a slump, and law school is no longer seen as a sure path to riches. Because software will allow fewer lawyers to do a lot more work, it’s sure to drive down both price and demand.

My opinion? Software won’t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.

(Part of this reminds me of the claims in the early 20th century that polygraph machines would replace juries, since machines could judge truth of falsity and revolutionize the entire legal process. That didn’t happen, of course.)

It’s true that being a lawyer today involves a great deal of drudge work, especially at the lower echelons, and certainly eliminating some of the most time-consuming parts of the profession has the potential to reduce the workload. But while computer programs to generate wills have cut back on the demand for bare-bones legal services, the general result, I think, has been to increase the number of written wills, not to reduce the people who consult a lawyer for more complex drafting. Similarly, I expect contract-writing tools to help create more written contracts, not to reduce the important of lawyers who write and review more complex deals. The result will, hopefully, be more routinized, written business processes–but may result in freeing lawyers to spend more time drafting complex documents that exceed the abilities of programs to interpret alone.

The basics of document review can already be outsourced abroad in some cases, and using machine processing is rather similar. It helps with the routine and frees up time for the more complex.

The law is a complex human construction because society is a complex human construction. As long as it stays that way (and as long as people form a society, it will), it will take humans versed in its complexities to manage it fully.

At least at the University of California, San Diego, the process involves tech transfer officers–6 for the life sciences, 3 for other kinds of technology, and 1 who does both–reviewing the research done at UCSD. They look for innovations that may be potentially turned into marketable intellectual property. According to Dr. Montisano, a life sciences tech transfer officer at UCSD, they do not “police faculty.” As a result, they sometimes do not learn of new technology until after publication, which immediately causes the loss of international patent rights, and puts U.S. patent rights on a 1-year timeline.

If they do manage to intercept the technology in time–either through researchers submitting it to them directly, or by discovering it after publication–they review the innovation, and may file a provisional patent application to preserve their rights (this allows publication). They then have a year to convert that to a full patent.

Once they have provisional protection in place, the office looks for a good licensee for the technology. They first put a description of the innovation on the UCSD web site, making it available to interested parties who may be seeking such technology. They also identify and actively target potential companies for licensing, focusing on those they know do work in the field and who may be interested in the technology.

The point, according to Dr. Montisano, is to get the technology out into the world through commercialization, not to make a fortune, and UCSD looks for licensees on this basis. Such a focus emphasizes the public nature of the university, and emphasizes the role of the tech transfer office as the buffer zone between private and public enterprise–they license innovations for money, but do so with a goal of benefitting the public.

Additionally, the distribution process also protects researchers from undue market influences. The university owns the invention, not the professor, or grad student, or research tech. 50% of the incoming money goes to the university as a whole, while the remaining 50% is split by the department between those who developed the invention and the department. Thus, even the incoming money is diluted and sifted, buffering the researchers themselves from direct contact with the commercial players.

More rules are in place when it comes to researchers profiting or being overly involved in the commercial enterprise while retaining their role at the university. A university researcher cannot be the executive of a licensee company nor a board member, but can sit on a scientific advisory board. Such a researcher can own shares in the company, though, suggesting at least one way for the market to more directly intrude on an individual academic. Nonetheless, to be full involved in directing a licensee, a researcher must leave the university and their post as an academic and fully enter the commercial world.

Finally, the office itself is insulated from the money involved. Although they bring in millions to the University of California, UCSD’s technology transfer office is funded entirely by the state. No funding comes through a percentage of license fees and no officer receives specific bonuses for signing deals. This emphasizes their focus on the public service of commercializing technology, rather than on their use as market-enablers.

Madey v. Duke

Even after Madey, many researchers continue to ignore patent protections, and continue their work as if they didn’t need to license technology. The result has been increasing claims by license-holders, and a growing sense by researchers that this is complicating their scientific pursuits and introducing extra costs and restrictions.

Universities, now large licensors themselves of new technology thanks to Bayh-Dole and technology transfer offices, have turned to, in the language of Professor Robin Feldman, “open transfer” agreements to lossen up these restrictions. Such agreements are added to agreements when universities license their technologies for industry to develop, and permit both the licensing university and any other nonprofit they allow to use the technology for education and research. This approach co-opts the mechanisms of the market, rather like open-source licensing does, to permit the continued free sharing and publishing in the academic community.

What do these clauses look like? In the case of the University of California, San Diego, Article 2.2 of the sample agreement for licensing captures this “open transfer” provision:

2.2 Reservation of Rights. UNIVERSITY reserves the right to:
(a) use the Invention, and Patent Rights for educational and research purposes;
(b) publish or otherwise disseminate any information about the Invention at any time; and
(c) allow other nonprofit institutions to use and publish or otherwise disseminate any information about Invention and Patent Rights for educational and research purposes.

Part (a) and (b) are relatively standard in all licensing agreements, commercial or not. Most industry licenses also permit the licensor to use their own technology. Part (c) is the interesting part, as it permits other nonprofit institutions to also use and even publish on the technology, provided it is for educational and research purposes. In other words, what the Federal Circuit has taken out of common law, university tech transfer offices have recreated through their own market-focused and neoliberal license agreements.

This approach suggests that, despite efforts to commercialize the “ivory tower,” there remain creative resistance that seeks to maintain the traditional values and benefits of an academic research environment.

There are, of course, numerous challenges for tech transfer offices. Within the university, most scientists are “in it for the science” and not for the money, according to Dr. Montisano. University researchers have the tendency to publish first, forcing his office to chase after them to try to prevent the loss of patent rights (publishing first loses most international rights immediately, though U.S. law allows for a year’s grace). Outside the university, industry values focus on profit first–even if many researchers have been taught to value the science by universities first.

Diagram from James A. Severson, Ph.D., of Veratect Corporation, Kirkland, WA

Industry prefers to restrict use of its technologies to those explicitly licensed—and such licensees generally must pay for the privilege of their use. Methods and materials are kept close, as trade secrets, unless licensed out for approved use. Competitors must be kept from access to preserve corporate profits. Universities, on the other hand, have generally taken a much broader approach to technology use and sharing. Researchers in universities must “publish or perish,” and getting describing methods and approaches garners a researcher the most benefit when readership is broad. One-upping academic competitors is still a key goal, but the method is through demonstration and publishing successes, not through profit-making and market dominance.

The Bayh-Dole Act attempted to bridge the divide, and technology transfer offices are the means of its implementation. Prior to Bayh-Dole, “legislators were concerned that for a variety of reasons, the government”–formerly the federal government owned the research it funded–“had proved ineffective as a shepherd of the inventions created with federal research dollars” (see Open Source, Open Access, and Open Transfer: Market Approaches to Research Bottlenecks). By many measures, the results have been phenomenal: at the end of fiscal year 2009, UCSD alone had more than 400 licenses active around the world, with a steady increase since 2000. Also in 2009, UCSD’s technology transfer office distributed more than fifteen million dollars to inventors ($9 million), joint titleholders ($432 thousand) research labs and departments ($2.5 million), and the UC general fund ($2.5 million).

All the money suggests some obvious problems created by the “intrusion” of a neoliberal, market-focused approach into the “ivory tower” university environment (assuming such pure extremes ever existed). For a cash-strapped state government like California’s, why not emphasize this market-connected activity and turn universities into self-supporting institutions? Such an approach risks compromising the university focus of basic research and–perhaps even more importantly–ignores the less commodifiable teaching and research done at such institutions, especially in the humanities. Even within the sciences, forcing research to fit into license agreements and patent arrangements may impede the flow of data, slow down innovation by restricting information sharing, and, ultimately, force university researchers away from basic sciences that form the core of future applications.

Related articles

• Technology Transfer and the Third Way (kfwhite.wordpress.com)
• Columbia University’s Tech Transfer Guru, Orin Herskowitz, on Turning IT, Biotech, and Cleantech Ideas Into Businesses (xconomy.com)

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis “invented” the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this Article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, [but] took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s “inviolate personality.”

According to Richards and Solove, then, the “right to privacy” as we now understand it actually grew out of an earlier recognition of the right to confidentiality in certain situations. Warren and Brandeis then took this original principle of confidentiality, embodied in common-law decisions such as the English case of Prince Albert v. Strange (1849), and shifted it to focus on a newly developed right to privacy. Their goal? To protect individuals from a perceived new threat to their reputations and self-ownership by the growth of a new combination of technologies: photographs and new, faster printing presses of the booming newspaper industry. Essentially, the technologies that enable People magazine today galvanized Warren and Brandeis to enunciate a “right to privacy.” They produced their groundbreaking article not because of the threat of unwarranted government searches, or even the potential for telegraph operators to reveal confidential business information entrusted to them by customers, but rather because of the new potential for mass-market gossip.

The earlier–and still existing, especially in the United Kingdom, which never adopted Warren and Brandeis’ positions–right to confidentiality, on the other hand, focused on relationships: “Rather than protecting the information we hide away in secrecy,” write Richards and Solove, “confidentiality protects the information we share with others based upon our expectations of trust and reliance in relationships” (p. 125).

In short, if one intends to look at how what we call “privacy” today was perceived by Americans in the nineteenth century, one needs to begin by looking at confidentiality, not privacy as the cornerstone of such an investigation. The concern was not so much with what was secret, but rather what was shared via trust relationships. Basically, given the much smaller size and power of police agencies in the nineteenth century, most Americans were less concerned with law enforcement intrusion than with competitors and gossips. If they were concerned with government intrusion, it was in the context of protecting the home against invasion.

The second concern is exactly what Warren and Brandeis picked up on, while the first has been dealt with in American law by a patchwork of remedies, from trade secrets to copyright to “unjust enrichment,” but never developed quite as fully as in English law once Warren and Brandeis sent American jurisprudence down the path of “privacy = protection from gossip.”

Even postal mail, long considered sacrosanct from meddling by either governments or individuals, was primarily protected by postal regulations and morality. It was not until 1878 that the Supreme Court, in Ex parte Jackson, finally extended Fourth Amendment protections from papers in a person’s home to papers in transit through the mails. That this happened in the late 1800s is no surprise; this was also the beginning of the modern administrative state and the modern business monopoly. New technologies had finally forced the law to take steps to catch up.

Related articles

• Stepping stone to Internet privacy: the telegraph (inpropriapersona.com)
• The telegraph and business invasions of privacy (inpropriapersona.com)
• Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878) (inpropriapersona.com)

Much as blogs have bitten into the news business and YouTube has challenged television, digital self-publishing is creating a powerful new niche in books that's threatening the traditional industry. Once derided as “vanity” titles by the publishing establishment, self-published books suddenly are able to thrive by circumventing the establishment.

via Digital Self-Publishing Shakes Up Traditional Book Industry — WSJ.com.

It’s finally possible to skip the traditional publishers altogether, publishing yourself (via Amazon, for example), and get discovered by fans directly! Of course, you’re own your own with editing (contract it out? ask the significant other?) and advertising (social media, anyone?), and there are no advances on your sales.

On the other hand, there’s no publisher telling you what you can and cannot say (but then again, there’s no publisher/editor telling you what you should say and shouldn’t say…), and no sending your manuscript in–and then never hearing back with more than a form letter.

Instead, you write great stuff, put it up through Amazon, some fans discover you and… presto! You’re rich & famous! Amazon’s discovery algorithms help with this (the more people read and like your work, the more often it gets recommended), but you still need to get that critical mass started (which is one thing a publisher can do for you).

So this is great for fiction. I wonder if it has any possibilities for academic work? How would a department rate your self-published book in terms of tenure decisions? By number of copies sold? (But academic works never sell much.) Somehow, I suspect the academic world will be very, very slow to accept self-published works as “real” publications…

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Federal Communications Commission Chairman Julius Genachowski has decided to reregulate Internet lines to protect net neutrality, siding with consumer groups and Internet companies worried that Internet providers have too much power.

via FCC to Overhaul Regulation of Internet Lines — WSJ.com.

Is this good for consumers? Good for business? We’ll have to see. At the very least, it means that Obama’s FCC is not interested in simply maintaining the status quo.

You see, the goal of “the cloud” isn’t simply putting all of your stuff into some stored space for access. It’s connecting your “stuff” — your apps, data, networks, etc. The how, if, why, when and where of that connecting (you could call it, for lack of a better word, “glue”) is wholly dependent on the terms of service around APIs.

via APIs, TOS, and building a hooked web | CloudAve.

In that spirit, lets review the highlights of some terms of service (Tos), current as of February 15, 2009:

Twitter

The main point of the Twitter API’s terms of service (which is surprisingly short!) is that you should get user permission first and not meddle with a Tweet’s content. Perhaps as a result of the very favorable set of terms, many applications access Twitter data, or leverage the Twitter stream.

Flickr

In contrast to Twitter, the Flickr API has a long and extensive set of terms as part of its terms of service. Like Twitter, none of these are too burdensome, although the pre-approval requirement for commercial apps could make basing a business on access to the Flickr API potentially problematic. Highlights include:

• Following all other Flickr and Yahoo terms of use
• Complying with user/owner terms and conditions (private flags, etc.)
• Have your own privacy policy
• Commercial applications have specific requirements and require specific approval from Flickr first (and may require payment)
• No warranty by Flickr, release of liability, etc. — plus some more legal terminology

Despite the longer language, most of this is not particularly onerous (possibly excepting the commercial-approval requirement), and there are thus many applications making use of the Flickr API in some form or another.

LinkedIn

The LinkedIn API terms of service are much more detailed and more restrictive. As a result, I know of very few applications that interface with LinkedIn. In reference to their API terms, Eric Norlin writes:

LinkedIn is famous in some circles (no names) for not playing so nice with their API. According to their terms, you can’t store anything other than a profile or ID — which is to say you can’t store the most powerful/useful thing about LinkedIn — the connections. Beyond that, their TOS says that you can’t use their API and “compete” (though it never defines what that is). And, to put the icing on top, they gain the right to “audit” you if you use their API.

Neither Flickr nor Twitter explicitly limit your ability to “compete” if you use their API (though Flickr might, since they reserve the right to deny “commercial use”), nor do they limit storage of the data you pull via the API. Certainly from a business perspective, it makes good sense for LinkedIn to take this approach — connections are the core of their offering, really, so allowing a competitor to leverage those connections via their API is a concern. Nonetheless, setting firm limits on use by everyone, potential competitor or not, severely limits the potential innovation of 3rd-party developers.

Facebook

Facebook has detailed, relatively easy-to-understand policies use of its APIs. Most of the complexity emerges from the fact that there are multiple ways for developers to interact with Facebook. Nonetheless, there are extensive examples and explanations provided by Facebook. There are a variety of limitations placed on developers, but this hasn’t hampered rampant Facebook application development. The biggest limitation — similar to LinkedIn’s restriction — is that Facebook data cannot be stored for more than 24 hours.

Unlike LinkedIn, commercial application development is clearly encouraged, although there are extensive limitations on how those applications can interact with Facebook. Like Twitter, Facebook’s stream is now available, and applications are starting to leverage it. But like LinkedIn, connection data cannot be stored, even if it can be accessed while a user is connected.

Conclusion

Despite the extensive limitations of Facebook, it is one of the #1 platforms for which 3rd-party developers write applications. LinkedIn, by contrast, has not developed the same number of application developers. Twitter, which has very loose terms, has extensive developer support.

In my opinion, developers write for Facebook because (1) that’s where the users are, first and (2) commercial applications are allowed and even encouraged. Developers write for Twitter because (1) it has users and (2) terms of use are straightforward. Similarly, Flickr has rich content and access is straightforward. LinkedIn, on the other hand, has a complex API and terms of service that appear limiting, especially when it comes to commercial use.

Terms of use are critical. Most allow for the revocation of access if the API provider decides to do so. If that happens to you, you may have little recourse. Make sure you understand the terms before you build a business on top of someone else’s API.

What does this mean in terms of “actually building things”? For software developers, not much. Technical utility of the API itself is much more important. For business developers, they can mean the difference between a neat toy and a profitable venture.

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Some of this difficulty is unavoidable when organizations are dealing with people connecting with a wide variety of equipment in a wide variety of circumstances. (Think Mac OS X and Apple’s limited hardware vs. Windows dealing with the vagaries of PC hardware.) But other technology challenges are easily remedied through decent design and forethought.

Case in point: connecting to the AT&T WiFi at Starbucks. I am an irregular Starbucks customer — but enough of one to have a pre-paid Starbucks card. Occasionally I use wireless provided by AT&T to check my email or do some reading while I drink my coffee and, in fact, the consistent existence of wireless is a reason I choose Starbucks.

(I suspect this use makes me pretty much the target audience for Starbucks, even if my technical knowledge — I am a former Web developer and systems administrator — perhaps gives me more familiarity with the underlying technology and design issues than some other customers.)

I have no trouble connecting to the 802.11 signal (“attwifi”). (My technology works fine.) It isn’t until I actually am connected that the trouble starts.

First, I’m greeted by a Starbucks screen with an orange AT&T bar at the top. There’s a box for a user name, a drop down confusingly labeled “Make a Selection,” a password box, a checkbox for me to agree to term of service — and then two buttons, one labeled “Connect to the Internet” and the other labeled “Log In.”

OK, well, I’ve done this before (though it’s been a while), and I believe I already have an account. So even though what I really want to do is connect to the Internet, I’m going to try filling in my login info and clicking log in first.

So I put in my user name, then hit the dropdown box. There are 14 options, none of which say “Starbucks.” Hmm. Well, this is AT&T WiFi, so I guess I need to select that one. But wait, there’s three choices labeled AT&T! Which one am I? I suppose I’ll just try the first one, and see if it works.

So I put in my password (I think it’s the right password — it’s been a while since I last used the service), accept the terms, and click on the log in box (I hope that’s the right thing to do).

Instead of connecting to the Internet, I instead get a screen telling me that my email address hasn’t been validated, and I won’t be allowed to continue until it is. Find, it looks like I can send a validation email from this screen — but wait, I can’t connect to the Internet, so how am I supposed to see the email?

The screen also suggests that I must not have validated my email address properly before — but as far as I can remember, I’ve never been sent a validation email from AT&T anyway! So I guess, despite being a Starbucks customer, I don’t get to use the WiFi today, and won’t be able to until I get home and track down this validation email? What if it never comes? Do I have to return to Starbucks to try asking for another one?

Perhaps I logged into the wrong account. After all, I am a Starbucks customer, not an AT&T one, right? And I have a valid pre-paid Starbucks card (which I just used to buy my cooling coffee.) I’ll try going to Starbucks.com to see if there’s something about a Starbucks account or another way to login or access my account.

Starbucks.com only partly loads (why?!), but at the bottom there’s a link to “your account,” so I’ll try that.

Great, a login screen that’s branded with the store I’m actually in! My login works, but I’m not presented with much about WiFi. Still, WiFi is mentioned near “Account Management,” so I’ll try that.

OK, now on the left is “WiFi Info,” which sounds promising. Now I get a link to “create an AT&T account,” so I guess I’ll try that (do I already have one?) It says my prepaid card is my “ticket to free and easy Wireless access at Starbucks,” so that’s a good sign.

Unfortunately, the link appears to be broken. Hmm. I see two other laptops here online, so I guess I’ll try reloading. OK, that worked, now I get a screen “Starbucks Card Rewards with WiFi.” That sort of works. Now at least I have a “Sign Up” button to try.

This looks positive. I can sign in with my account on Starbucks.com. That sounds good, since I know that work, right? I just used it, after all.

Unfortunately, it doesn’t work. When I try to put my information in, I get the confusing response — presented in red as an error message — that I already have an account. Um, yeah, I know I already have a Starbucks account, that’s what I’m using! (Oh, you mean, I already have an AT&T account? Why don’t you say so! And that isn’t very helpful.)

Now what?

I give up and go home, not wanting to return to Starbucks again, and not interested in dealing with AT&T ever again.