Category: Patents

“Innovation” Doesn’t Mean Anything

"innovation"

Two headlines in the first week of this month said a lot about the United States as an “innovative” nation right now. One story announced that the first driverless semi-trucks are on the highway covering normal long-haul routes, and the second reported that the final shipments of pre-tariff goods from China were arriving at U.S. ports. Leave it to contemporary America to dispatch a new fleet of robot trucks just in time for the cargo containers to be empty. On the other hand, I guess it works out in principle because the unemployed truck driver won’t have money to buy the goods that won’t be on the shelves.

According to the tech-utopians about a decade ago, the displaced truck driver shouldn’t worry because he now lives in a world of abundance and can, at last, spend his days painting or writing poetry or making music with all the leisure time he now enjoys. Isn’t that what happened? Didn’t technology “innovate” that Keynesian promise of a social and economic golden age? Doesn’t look like it. In fact, we’ve even got machines to write poetry and make music, so the ex truck driver will just have to pound sand.

Big Tech historically calls everything it does “innovation,” allowing scant room for critique of a product’s pros and cons while labeling any policy that might protect some injured parties “anti-innovation.” Even where harmful results are identified and become the subjects of congressional hearings, the product makers effectively sell these “unintended” hazarrds as a price that must be paid for “more innovation.” And, by the way, that promised “age of abundance” will start any day now, if we are just patient and keep feeding the beast more data.

The Coalition for a Safer Web can describe in grim detail how social media and other tech platforms have “innovated” teen suicide, scams, and drug trafficking. Or the recent proliferation of AI “companion” apps (virtual girlfriends and boyfriends) has “innovated” new concerns among child psychologists—and these apps may also “innovate” new vectors for malware attacks. And, of course, increasingly realistic AI deepfakes may further “innovate” our fleeting grasp on reality, which has been essential to “innovating” American democracy to the edge of extinction.

Sporting the word “innovation” as a cloak for all manner of sins, the tech industry contends that the materials used to build the next generation of AI products (i.e., the works of artists and creators) are so essential for even more “innovation” that copyright rights must be disregarded. Elon Musk and Jack Dorsey even opined that the U.S. should simply abandon intellectual property rights altogether, and the industry rhetoric appealing to the current administration claims that copyrights must not hamper the national interest in “winning” the competition to build the “best” AI.

The folly of declaring an intent to “win the AI war” without defining what success looks like is consistent with U.S. tech policy for decades and with policy affecting all sectors, public and private, today. To call Trump 2.0 incoherent is too kind, as that term can imply well-meaning error when, in fact, the administration is engaged in a purposeful, multi-pronged attack on science and the arts in direct conflict with the intent of the progress clause of the Constitution.

Article I, Section 8, Clause 8, giving Congress the power to “promote science and the useful arts” by establishing copyright and patent laws was an expression of the Framers hope that the fledgling, agrarian nation might one day create great cultural works and inventions. But of course, IP law alone can’t do that. Quite simply, without the I, you ain’t got no P—and I is under assault in the United States. Brain-drain and chaos are now the hallmarks of every federal department from healthcare to defense, and in the private sector, Trump’s goons attack universities, the motion picture industry, publishers, authors, journalists, and scientists—literally anyone smarter than they are, which includes a lot of damn people.

“Innovation,” Copyright, and AI Training

Big Tech argues that all AI training with protected works should be exempted from infringement claims by the doctrine of fair use. Ordinarily, broad claims about fair use remain in the blogosphere while specific legal questions are weighed in court. But in regard to AI training, I worry that the general perception of the technology as “innovative” may result in overbroad application of “transformativeness” under factor one, which considers the purpose of a use.

For instance, Judge Chhabria, in last week’s hearing in Kadrey et al. v. Meta, stated that Meta’s Llama is “highly transformative,” which may signal an overbroad reading that synonymizes “transformative” with “innovative” while also eliding a thorough weighing of the extensive purposes for which the use is made. Or in a nutshell, how can a court fully consider the purpose of a use when the technology at issue is dynamic and open-ended?

As noted in an earlier post, landmark fair use cases have involved technologies that were complete models as facts presented to the courts—e.g., the VCR and the Google Books search tool. The court did not need to wonder, for instance, whether the purpose of Google Books—i.e., to provide information about books—might also be used to build an AI “psychologist” that may harm patients seeking mental healthcare. In fact, as The Guardian reports on this very issue, Mark Zuckerberg advocates “innovating” psychotherapy with AI “providers,” thus adding doctor next to historian, journalist, and constitutional scholar to the list of qualifications he lacks as he proceeds to break all things.

In this context, and with the recognition that Meta’s commercial interests entail application of its AI tools across many, if not all, initiatives in the company, what exactly is the purpose of Llama as weighed in a factor one fair use consideration? I’m not convinced the court can really know.

Beyond the Four Factors

When Congress codified fair use in the 1976 Act, it sought to convey over a century of judge-made law as statutory guidance, but beyond the four-factor test, “courts may take other considerations into account,” writes Professor Jane Ginsburg in a paper about AI and fair use. Indeed, she cites to the Google Books case, in which the court states, “the use provides a significant benefit to the public.” But with a product like Llama, where a court has reason to predict substantial crossover between socially beneficial and socially toxic purposes, how can a judge reasonably decide whether the purpose is “highly transformative” when the facts themselves are so ephemeral?

It is one matter for a court to consider the “transformativeness” of an AI built for a clearly defined purpose as presented, but it seems another matter if the technology has myriad purposes, including ones that will manifest after a case has been resolved. Whether Midjourney’s purpose to enable the production of visual works makes fair use of visual works in its training may be a sufficiently narrow consideration, but by contrast, an LLM developed by Meta is arguably open-ended development for purposes as yet undefined.

After all, Meta began with a college student ranking sorority girls and is now a trillion-dollar company that has altered the course of human history—and many of its “innovations” have had destructive results. In this light, the courts should decline to find “transformativeness” in the same overbroad spirit in which the tech industry wields the term “innovation.” Because without a clear definition and coherent law and policy, “innovation” is how we end up with a truck with no driver carrying a load of nothing to nobody.

Photo by Snoopydog1955

Patent Hypocrisy Raises Privacy Concerns

A few posts ago, I reported that the major lobbying muscle in the Internet industry backs a patent “reform” bill (HR 9) called the Innovation Act. I argued in that post that while this reform claims to eliminate nuisance “patent trolls” from clogging up the system with dubious claims, what it really does is eliminate competition from the market.  Because, while the Silicon Valley PR hydra continues to sell the message that intellectual property is an outdated concept in the digital age — one that is chilling the general public’s civil liberties no less — they don’t actually mean that IP is outdated for them, just for everyone else.

Not surprisingly, a web search is no way to get a quick answer as to how many patents these companies hold. Most especially, typing “How many patents does Google have?” into a Google search yields a rather opaque set of first results from the “organizer of all data.” I had to use Bing to get to this article from 2013 in MIT Technology Review, which indicates that since 2007, Google has accelerated its patent activity to the tune of over 1,500 awards per year.  This is still far behind IBM, but not bad for a company that keeps telling the public the USPTO is “overwhelmed” by applications and flimsy claims. This 2012 article from ZD Net estimates that Facebook owned 812 patents at the time of publication, nearly all of these purchased from IBM in a single week as an apparent move to build up its defensive position against litigation from Yahoo! and Mitel.  And this 2014 article in IP Watchdog offers some praise to Facebook for its “more developed” patent strategy in contrast to Twitter vis-a-vis market valuation.

I mention this final example to make the point that there is nothing inherently wrong with these companies availing themselves of IP protections; what’s wrong is the hypocrisy of backing policy change that would create an uneven playing field for big vs small.  To put that in brass tacks, if one of these big boys infringed some IP you created, it isn’t enough that you’d be at a financial disadvantage in a lawsuit, but they’d also rewrite the law to possibly label you a “troll” in order to invalidate your claim in the first place.

But so what? These are the real innovators, right?  They’re innovating a brighter future for everyone and doing it all for free in the name of freedom and open freeness and free openness and disruptive free open innovation and freedom. Right?  Yeah.  So, here’s one of Facebook’s latest patents, Patent No. 9,100,400, which this excerpt from a post by the law firm of Gottlieb Rackman & Reisman explains clearly:

“In the patent, Facebook explains that it has invented a system by which, among other things, it can take the data, specifically your list of friends or your “social network,” and examine the credit ratings of those in your social network. The data is then used to provide information about YOU to lenders, presumably under the theory that “birds of a feather flock together.” If your friends collectively have a good credit rating, the lender might give you loan. If your friends collectively have a poor rating, the lender can close its file on your application. The point here that that lenders who might see some benefit in having data about your social network to judge the likelihood of your ability to pay the loan, or even your willingness to pay it back, will likely be paying Facebook (or any company that Facebook licenses) for the data.”

At the top of the list of magical thinkers I distrust are religious zealots followed closely by actuaries, the latter being too often engaged in devising some alchemical rationale to correlate, for instance, your choice of wardrobe with the insurance premium you should pay.  And we should not be surprised at all — in fact we have already seen other evidence — that social media profiles can become part of your unintended resume, your medical history, your credit-worthiness, your insurability; in short, your worthiness to live among the haves instead of the have nots according to someone’s data-driven decision process.

Now it is possible, that Facebook and lenders will not be able to implement this patented system as described without running afoul of the Equal Credit Opportunity Act, but if adopted, how is this credit based on the company you keep not a potential digital-age means of helping the rich stay rich and the poor stay poor?  When an entity like an insurer, creditor, or potential employer wants to disenfranchise a type of person — black, gay, Mexican, women who have premarital sex! — they devise criteria to avoid direct conflict with anti-discrimination laws.  “We didn’t deny you that loan because you’re black, we denied it because your friends (who didn’t manage to escape the impoverished neighborhood you did) all have bad credit scores.”

So, it’s not hard to imagine a future with a variety of creative, actuarial schematics by which any individual or group may be disenfranchised simply because we have voluntarily made what we used to call “private life” a matter of public record. And because this is the new normal, perhaps we ought to be drawing new legal boundaries regarding personal information and discrimination, but that doesn’t seem to be the kind of reform any of the digital-age leaders want to talk about.

The Innovation Act is Anti-Innovation

Google remains the third largest corporate lobbyist in the country, spending a reported $4.62 million in the second quarter in Washington, with Amazon, Facebook, and Apple spending a combined $6.07 million in the same period.  Naturally, each company has its own interests—Facebook would like more skilled immigrants in the U.S. and Amazon wants to deliver goods by drone—but all of these tech giants, according to this story in Wired, have urged lawmakers to support a patent reform bill called the Innovation Act (HR 9).  Of course, the names of bills can be terribly misleading sometimes. Because, as far as I can tell, the Innovation Act is fundamentally anti-innovation.

At its core, HR 9 is meant to rid the patent system of the dreaded Patent Troll, who—like its cousin the Copyright Troll—will enforce a somewhat flimsy claim in some constituent patent it has no interest in developing, but pursues the case solely for the purpose of extracting money from an entity that is developing something new.  Even strong patent proponents will admit that bad actors exist—bad actors exist in every system—but that trolls are the exception not the rule, and more importantly, that the Innovation Act is based on a definition of “troll” so broad as to potentially disenfranchise many legitimate inventors.  In essence, the passage of HR 9 would be a rather sad comment on the fundamentally American rationale that established the intellectual property clause in the first place — the assumption that a great idea might come from anywhere.

The central problem with the way Silicon Valley interests are portraying the need for reform, according to Professor Adam Mossoff at the Center for the Protection of Intellectual Property at George Mason University School of Law, is that so many of the arguments are predicated on what he calls “junk science.”  Mossoff criticizes inaccurate studies of patent litigation, which have led to defining the term “patent troll” so broadly as to threaten a hugely inventive sector of the American market.  In legal lingo, the colloquial troll is generally referred to as a Non-Practicing Entity (NPE), but much of the data used to support reform proposals will define NPEs as “any entity that derives the majority of its revenue from patent licensing activities.”  As Mossoff—and former patent judge Paul Michel—will point out, this would include universities, start-ups, biotech firms—literally any entity that has the capacity and resources to invent but not the resources, structure, or expertise to develop, manufacture, distribute, and market. To quote Mossoff, “…the definition [of the NPE being applied] is so broad that it renders the results of its study completely uninteresting, unremarkable, and predictable – it’s like saying that 90% of people who sue over an auto accident own cars.”

If a doctor has a concept for a new medical device, both she and the public are going to benefit faster in most cases if the device is sold or licensed to a company that already has the resources to bring the instrument to the market.  Perhaps this same doctor will create a business entity that goes on to invent or improve several other medical devices, but which only ever sells the licenses for those products because it doesn’t make sense to become manufacturers.  Why should this innovative company’s patent interests be weakened by the fact that it would be defined as a Non-Practicing Entity?

In fact, where proposals like HR9 appear to lead is to further exacerbate the central hazard in the U.S. market, which continues to favor the massive corporation over the entrepreneurial endeavors.  It puts giant corporations at an unfair advantage—as if they didn’t already have an advantage—when it comes to licensing or exploiting the intellectual property created by individuals, start-up entities, or R&D-based institutions like universities.  Not only does this seem as though it would accelerate the disastrous trend of wealth consolidation, but it also appears to undermine the central, democratic principle that genius may come from the humblest corners of society and should be rewarded when it does.

On this note, I also have to point out that the arguments for this proposed reform to patent law sound a little too app-centric for our own good.  In large part, the aims of the “reformers” appear to be predicated on software and other innovations that tend to have short lifespans in the market–transformations measured in months in contrast to patents that last years.  And while I understand how distracted we can be with all the shiny objects that dance around on our little screens—giving us new ways to spy on ourselves for data mining companies; to hook up for casual encounters; to order a car service; or to play games on the crosstown bus—we should remember that there’s a lot of lower-tech invention and development that needs doing around here, even in the computing world.  We still need a greener energy paradigm, still have aging infrastructure, healthcare needs, security issues, outdated transportation systems, and growing concerns over resource management.  The inventions inherent in addressing any of these and other long-term challenges may well be in the minds of people whom HR 9 would define as future “patent trolls.”  That doesn’t sound like progress to me.