Scholars gathered at Stanford this week to discuss everything from privacy to patent trolls to horse-powered boats. The conference was about intellectual property but, at a deeper level, about the best ways to distribute ownership of brands and ideas.
Here are some takeaways from the conference — skim the sub-heads if you’re in hurry. If you’re not, read the entire article and click the links for the scholars’ own words.
A Privacy Bomb-Thrower is coming to the FTC
The University of Colorado’s Paul Ohm is joining the FTC in two weeks as a senior adviser on mobile privacy issues. At Stanford, he showed little restraint in his presentation, blasting Silicon Valley “pivots” (where a company picks a new strategy) as “lurches” that trample on user privacy. He proposes using companies’ own trademarks as a lever to get them to comply with privacy promises. His theory might require, for instance Facebook to choose a new company name if it modified its core privacy commitments.
It will be curious to see how someone so outspoken fares within the FTC. If he plays his cards right, Ohm could initiate a serious discussion between consumers, app makers and the government about the best way to balance privacy and innovation. But if he grandstands, Ohm will further the Obama Administration’s pattern of seeking headlines rather than comprehensive solutions to privacy problems.
Early patents: A Boat powered by horses
America’s early patents show that the historical scope of what could be patented is broader than many imagine. Professor Michael Risch’s slideshow and paper offer a view of America’s earliest patents, and provides new perspectives about how to think about inventors and the start of the patent system.
Skeptics of patents for software or business methods might consider that patents were granted for milk of magnesia, asbestos, lead paint and a programmable loom. Then there is the inventor of the horse-powered boat who obtained a patent — and promptly filed a lawsuit!
Frustrated that people are sharing your content without permission? Watch porn
Well, the porn industry that is. In a segment called “Industries without IP,” Professor Kate Darling described how copyright enforcement in the adult entertainment industry is prohibitively difficult for many content owners. In response, porn producers have shifted towards making “experience goods” like live chats. Is there a lesson here for other industries?
- See also, GigaOM’s Janko Roettgers “Why is there no Netflix for porn?”
In Q&A, Darling suggested that the lawyers who are blackmailing P2P users are outliers in the industry as a whole and their activities primarily target gay porn consumers. She added that courts are starting to put a stop to this.
Sunshine and Antitrust laws are our best bet against the patent trolls
The troll phenomenon — in which shell companies that don’t make anything but amass patents in order to sue those who do — is even worse than we imagined. New research by Professors Robin Feldman and Tom Ewing shows that super-troll (or “mass aggregator” if you want to be polite) Intellectual Ventures is tied to at least 1,300 shell companies.
Feldman’s talk “Giants Among Us” offered a closer look at IV and other mass trolls, and described the case for and against them. She noted that one frustration associated with trolls is that it can be impossible to know who is controlling them and who receives the gold they extort. One solution may be to require the shells to disclose their actual owners and for federal regulators to use anti-trust laws to address patent abuse by IV and others.
We are just beginning to understand who controls social media at work
The now-famous case over a blog that sued an outgoing writer to reclaim his Twitter followers is forcing scholars to think about who owns workplace social media accounts. Professor Zoe Argento explored how to balance the personal character of an account versus the account’s value to a company’s goodwill. The issue is turning into a can of worms not just for the law of trade secret but for employment law too. (See the abstract for Argento’s “Who owns the Social Media Account.”)
The smartphone patent mess: the past is the key to the future
The sight of Apple and Samsung using hundreds of thousands of patents to sue each other all over the world is enough to induce despair about the patent system. But Professor Colleen Chien of Santa Clara puts this in perspective by studying two previous patent epidemics — one over farmers’ tools in the 1880’s and another over railroad technology around the turn of the century. In both cases, interest groups built the requisite pressure over a period of 15-30 years to reform the system. To address the current problem, Chien says history shows that narrow laws will fare better than broad bills aimed at reforming the entire patent system.
The Supreme Court and unlimited copyrighted
The Supreme Court’s recent decision upholding Congress’s right to pluck material from the public domain has implications for free speech, according to Professor Howard Abrams (paper here). The Court’s expansive view of the constitution’s copyright clause means copyright defendants will have to rely on fair use and the idea/expression dichotomy rather than the First Amendment. There is also the question of what will happen next. “Mexico has already adopted life plus 100 years [for copyright terms] and Disney is salivating.”
Bureaucratic behavior determines the patent landscape
Two little know institutions, the Court of Appeals for the Federal Circuit (the patent court) and the United States Patent and Trademark Office, have an outsize influence on the country’s innovation policies. Their decisions about patents are shaped in part by a desire to preserve their power, prestige and relevance — and may not always align with the country’s best interest.
At the Stanford event, scholars like Paul Gugliuzza explored why specialized courts like Federal Circuit behave the way they do while members of the USPTO put themselves on the line to explain how the office collects fees (this led Professor Mark Lemley to question whether the USPTO’s fee structure will lead it to try and maximize revenue at the expense of issuing quality patents).
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These summaries represent only a few of the conference highlights and reflect my own cursory impressions. To get a proper understanding of the ideas at play, please consult the scholars’ work directly. The conference was organized by Brian Love who has recently accepted an assistant professorship at Santa Clara Law Faculty.
See a full list of the presentations here.
See the scholars and their papers here.
(Image by Andrey Burmakin via Shutterstock)