Monday, August 14, 2006

"Technology, Privilege and Innovation: The Legal Perspective"

Ravi Shukla works in internet law in Toronto, and spoke about how when the revolution comes it won't be blessed by lawyers. On the margins of law you get to see what's really going on, because the legal system is fundamentally conservative in the sense that it supports the status quo or existing social order. (He made a great side-point about how we can't then expect to use the legal system to overturn the conquest and protect minority Aboriginal rights.) He described the internet as a highly disruptive technology that has shaken up business models and continues to challenge legal models. From this perspective he focussed on iPods/iTunes and Google.

Ravi continued to explain that the iTunes Store has a low-profit margin, especially compared to the high-profit margin of iPod sales. But you can't have an iTunes store without copyright law, and so the iPod fundamentally leverages intellectual property law. Canadian copyright law is often described as user-rights based, and there was some speculation if the iTunes Store would even come to Canada given the connection between it and owner-rights based copyright law. The eventual introduction of the service actually ended up demonstrating that our laws are not as user-rights based as we like to think.

Google, on the other hand, exploits loopholes in trademark law in its ranking protocols and the ability to use brand names for keyword searching and advertising. (BTW - do a Google search for Google and note the absence of sponsored links!) However, the legal technicality is that the "functional use" of these terms is not trademark infrigement, and search engines are arguing that their software functionality should qualify in this way.

He also talked a bit about how companies use open-source strategies in ways that are quite interesting, and not uncommonly profit-driven. In collaborative cases, it's even possible for a player like IBM to open-source a product and therefore make it difficult or impossible for smaller players to make a profit from a similar product. In other words, open-source can also be used as a strategic business weapon, so it shouldn't be assumed to always be positive.

(Like anything, context is crucial. Following up on my earlier point about portals: portals aren't the problem as much as how they can serve particular interests. For example, a government portal has the power to delineate what constitutes national culture and that can be problematic, especially when the state becomes the arbiter of cultural taste and quality.)

Stephen Selznick then joined us by telephone and started by suggesting that the formal legal system is not always the best way to deal with the question of intellectual property. Consider how judges unfamiliar with new technologies are asked to rule on internet IP. What words or concepts or things will the judge remember when she makes her decision? When he passes IP legislation, what does that mean to him personally, as compared to real estate law which anyone who has bought a house knows at least a bit about? So what is IP? Well, how about "I Know It When I Seize It"?

Working outside the legal system are things like "self-help remedies such as technical protection measures and anti-circumvention legislation," like 'renting' a dvd movie from a kiosk that burns you a copy that only plays a set number of times based on what you pay. But he also mentioned making illegal hacking-type things (like the DeCSS program?) and that doesn't sit well with me at all, but I'm finding it really difficult to follow the legal-speak so maybe I'm misunderstanding something.) He also talked about "collective, as opposed to personal, administration and enforcement of rights in new technologies - the carrot versus the stick approach" and alternate dispute resolution (ADR) that takes place outside the legal system. He explained that this is useful for balancing the rights of an innovator to capitalise on her creative work and the rights of the public to benefit from technological innovation, but I'm not entirely sure how that works.

(Actually - if you're a legal-type, especially of the Canadian variety, please help me understand all of this...)

Stephen referred to three spheres that govern us: government, courts and self-regulation. In a totalitarian situation it would be all government and in "true" democracy it would be all self-regulation, but really we just need a good balance betwene all three. In tech-culture, early adopters are protectionist (conservative) rather than interventionist (radical) in terms of self-regulation, and while it may involve greater technological expertise and nimbleness, it is often elitist. This, then, needs to be balanced with government or public interests.

In discussion, Ravi commented on how we're using technology to make decisions for us. (I think this is similar to some of Alex's points on protocol, and I think this is socially, culturally, politically and ethically dodgy at best.) Kate Armstrong asked how self-regulation relates to user-generated content, and I suddenly remembered Foucault's panopticism and the creepiness of watching ourselves and each other. I'm not sure if her question was actually answered but it does bring up some interesting issues that I hope we get back to.

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