Category: Technology

Pharmaceutical Law Symposium

I just wanted to invite readers in the greater NYC region to the Seton Hall Law Review’s symposium on pharmaceutical law tomorrow (Friday, Feb. 16). We’ve got some interesting panels lined up, and the general counsel of HHS (Daniel Meron) will be giving the keynote.

The Symposium will focus on how the FDA’s drug approval process affects public health, intellectual property protections, and the economy. Panels will explore the FDA’s role in determining whether a drug is safe and effective for its intended uses and how its approach addresses public health needs, affects research and development, and influences insurance coverage decisions.

We’ll also have a panel on global public health, including Terry Fisher, Shamnad Basheer, and me. My presentation, inspired in part by this Laurie Garrett article, will focus on the public health infrastructure necessary to assure the proper distribution of drugs in LDCs.

The Limits of Law & Econ in IP: The Case of Digital Music

Once again, the folks at Truth on the Market have celebrated the recording industry’s efforts to assure perfect control over copyrighted content via Digital Rights Management. Free marketeers like Tyler Cowen are beginning to question DRM as a tax on consumers, and even one of the big four record companies is considering abandoning it. Untroubled by such doubts, Josh Wright and Geoff Manne push for ever more latitude for the dominant platform (iTunes) and dominant content providers (the big four recording companies).

Their posts provide classic examples of what Reza Dibadj has called the key shortcomings of conventional law & economics (L&E) reasoning. As Dibadj summarizes,

[T]hree of the most basic assumptions to the popular L&E enterprise–that people are rational, that ability to pay determines value, and that the common law is efficient–while couched in the metaphors of science, remain unsubstantiated.

Let’s take a look at how each of these assumptions drives the TOTM approach to digital music markets.

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Virtual Women

Yesterday, the Virtual Women conference was held at Thomas Jefferson School of Law. It was the seventh annual Women and the Law conference for TJSL, and it was a good one. The keynote speaker was Rochelle Dreyfuss (NYU); panelists included Ann Bartow (South Carolina), the proprieter of Feminist Law Profs blog, Boatema Boateng (U.C.S.D.), Dan Burk (Minnesota), Carys Craig (Osgoode Hall at York University, Toronto), former Co-Op guest Christine Haight Farley (American), Michele Goodwin (DePaul), K.J. Greene (Thomas Jefferson), Eileen Kane (Penn State), Mary LaFrance (UNLV), Doris Estelle Long (John Marshall), Malla Pollack (American Justice), Cheryl Preston (BYU), and Rebecca Tushnet (Georgetown), as well as a panel of practicing attorneys. Kudos to conference organizers Julie Cromer and Sandy Rierson for putting together a great group.

With that line-up, it’s no surprise that the conference is already being blogged. On her blog, Rebecca Tushnet has posted summaries and reactions for the first two panels. If you haven’t already done so, you should take a look at Rebecca’s posts on the conference: Panel 1, Panel 2 (part 1), Panel 2 (part 2), Panel 3, and the Keynote.

Competing Ourselves to Death

In the run up to the Superbowl, the NYT has a disturbing story on the fate of Ted Johnson of the New England Patriots. Johnson suffered several concussions while playing and now suspects that they have permanently diminished his mental capacity. Johnson’s case is not isolated, and is leading to worries about “the N.F.L.’s record of allowing half of players who sustain concussions to return to the same game.” What’s next, the return of the flying wedge?

From a brute lawyerly perspective, the controversy raises some interesting issues. Are coaches and trainers negligently encouraging the injured to play? Could the players sign away any right to sue their teams (or the league) in cases like these? Might some political pressure need to be brought to bear here, like that which finally got baseball to face up to its steroid mess?

From a broader social perspective, other concerns arise. I’m presenting tomorrow at the Int’l Association of Science and Technology Studies on biotechnological enhancement that raises cognate issues. I’ll address a potential inversion of the traditional relationship between technology and values. Usually we think of values as guideposts that allow us to judge the worth of certain technological advances. But what happens when technology itself alters our cognitive capacities? Can it undermine our values? Certain drugs, trainings, or even game strategies might blunt or otherwise obscure our understanding of the world and ourselves. If we share Martha Nussbaums’s account of emotions as judgments of value, might these so-called performance-enhancements diminish the possibility of our rightly discerning our ends?

Any sporting pursuit that requires its participants to systematically risk their health in competition is troubling. But concussions like Johnson’s are doubly so, since they appear not merely to diminish or distort cognition, but to compromise one’s ability to even recognize the diminution taking place. The difficult question for regulators of various performance-enhancing neuropharmacological interventions is whether they have the potential to blunt users’ perceptions of the deep changes they wreak in users themselves. Substance addiction has been modeled as a case of “increasing marginal utility,” where the more one uses, the more one wants. New neural performance enhancement addiction might work in a far subtler way–by blunting the appeal of alternate sources of value and satisfaction.

Tech Law Prof as Prognosticator

fortune teller.jpgMy appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.

The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.

For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.

On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.

Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”

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The Hottest Internet Startup of 1960

Some legal research the other day unearthed a hilarious-in-retrospect account of the first online legal research service — a (pre-)internet startup from almost 50 years ago whose success-and-seediness story is eerily similar to those of more recent tech startups:

Law Research Service is a child of the computer age. In 1960, Hoppenfeld, a lawyer with some background in computer technology, perceived that computers could greatly facilitate legal research. He concluded that a practical system could be developed in which thousands upon thousands of court opinions would be fed into a computer, so that when a legal problem was submitted to the machine it would then select and retrieve all the relevant precedents . … [L]awyers would … pay an annual subscription and a small fee per inquiry. … Similar ideas for marrying computers to the law have been put forth but it seems that LRS was the first such legal information retrieval system to be tried commercially.

Sanders suggested a public offering which would raise not only enough money to cover the LRS’s debt … but would permit LRS to expand its computer library to cover decisions of the federal courts as well as those of the New York courts then already on tape.

Globus v. Law Research Service, 418 F.2d 1276 (2d Cir. 1969) (emphases added to the phrases that made me smile). I just wanted to share this as a nifty piece of legal history trivia, not so much comment on it… but I do have two quick points to make in the “more things change, the more they stay the same” department:

(1) The reported case was a now-familiar type of securities fraud lawsuit: alleging shady practices to raise capital for a tech startup.

(2) Between the financing problems and the “small” fee per inquiry business model: Is there something in the genetics of tech startup visionaries that they assume they can provide huge quantities of information to the masses without much means of actually making money?

Searching for Search Law

I’ve been writing and speaking on search engines a bit this past week, first at Hofstra’s Reclaiming the First Amendment Conference and later on David Levine‘s Hearsay Culture radio show. If you want to hear that show, just hop on KZSU Live tonight at 8PM EST (5PM PST). Or you can wait till it shows up on iTunes…but due to copyright concerns, you’ll miss out on Dave’s superb selection of engine-related music that will accompany the live broadcast. (Nevertheless, any tech law fans will want to subscribe to Levine’s show–he has a knack for enlivening legal topics with all manner of social, political, and economic discussions.)

Whatever you think about government regulation here, search engines are one of the most important tech phenomena to be shaped by law in the 21st century. A few prophetic scholars (like Niva Elkin-Koren and Helen Nissenbaum) saw this about 5 years ago; I’m part of a group building on their work to theorize it now. Our guest blogger Eric Goldman just covered a search conference in Haifa (and a prior Yale confab); he’s also got some very interesting pieces promoting the wisdom of laissez-faire here. James Grimmelmann’s The Structure of Search Law does a nice job of simultaneously describing search law as it stands and proposing modest steps for its development.

As for my own views, I’m afraid I’ll have to refer you to my podcast (and a forthcoming paper I’m co-authoring with Oren Bracha). But if anyone wants to recommend other search law scholarship in the comments, please feel free. I hope to highlight some interesting European work on the topic in a future post.

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And now, from the Department of Ironic Advertising

Boing Boing

This weekend, Cory Doctorow at Boing Boing ran a story about DRM problems with Apple’s new iPhone; this follows up on prior Boing Boing posts criticizing Apple’s DRM, such as Apple’s iTunes/iPod tying.

And who is sponsoring these posts? Take a look at the page: One of the sponsors is Nike+.

Now, Nike+ is a pretty really cool idea (as Cory himself pointed out earlier). You put a chip in your running shoes, and a little doohickey on your iPod, and your iPod suddenly tells you your pace, distance, and so on. That’s really cool. (It’s actually one major reason I’m considering buying an iPod nano; I may actually get one if I can finesse a way to buy it with Amex rewards points). But Nike+ is also, frustratingly, tied to a single type of MP3 player — the iPod nano. Which kinda-sorta makes it a really strange sponsor for a series of posts blasting Apple’s business model for “lock-in” and calling the iPod line “a roach-motel: customers check in, but they can’t check out.”

Dream Makers, Dream Breakers

stars.jpgI recently saw Dreamgirls, a well-marketed movie that’s largely about Barry Gordy-style marketing of music from the 50s to the 80s. Although there’s a lot to viscerally enjoy in the film, I kept analyzing the action from a lawyerly angle. Compulsory licenses, payola laws, restrictive entertainment industry contracts–all play pivotal roles in the movie. Each becomes a tool in the hands of a mogul and his enemies, as they struggle for fans and creative control.

Later in the weekend, I heard an interview with hip-hop impresario Ryan Leslie, who aims to be a 21st century starmaker. After scoring a perfect 1600 on the SAT, Leslie went to Harvard at 15, and is now precociously producing videos with Hollywood icons. Leslie’s career promises to be a lot less destructive than that of prior industry powerbrokers (for some spoiler-revealing reasons I’ll disclose after the jump). But what few fully realize is how important the law is to such a development.

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What Would Europe Do?

Muni Wifi Router.jpgI went to a few trying panels at the annual law prof conference, but overall I felt presentations in my fields were great. (Perhaps it’s just like Congress–people hate the institution but love their own representative). My two favorite panels were on the internet & telecommunications, and on health insurance. But I felt the latter was ultimately more satisfying than the former, largely because many of the health scholars were deeply aware of comparative health policy, but the internet/telephony panel focused very tightly on U.S. policies.

That’s not to say the internet/telephony panel was at all bad–many big names in the field were there, they directly argued with one another, and a high-level senate staffer injected some political realism into what could have become a speculative discussion. Perhaps the most compelling arguments for the status quo (as opposed to “net neutrality intervention“) were offered by Christopher Yoo, who put forward a quasi-Gilderian vision of Darwinian competition unleashing quantum advances in communication services. For example, Yoo said it would be foolish for the FCC to protect Google from “gouging” by broadband networks, since the danger of such discrimination might just drive Google to massively invest in a satellite network to provide a third alternative to the the telephone/cable duopoly. Some would say it’s that duopoly that’s largely responsible for the US’s pathetic ranking of 21st in the world (right behind Estonia) in broadband penetration.

That makes a lot of sense as far as it goes, and reminds me generally of Schumpeterian visions of innovation–let monopolies rack up rents so they’ll either use profits to innovate or provoke someone else to swipe their customers. But another, gentler vision animates some European policy on the matter, where most customers get much lower prices for much faster services than Americans do.

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