Besides the Year-End Reviews, How About Looking Forward to the Year, or the Century, to Come?

by Chris Borgen

‘Tis the season for year-in-reviews, for taking stock or where we’ve been. ‘Tis also the season for making resolutions about what we want to do in the coming year. (And a week from now will be the season for breaking those resolutions.)

But in the midst of the backward glances and hopeful promises, it might be interesting not only to make promises about what we want to do (Exercise more! Live “in the present!” Reconsider the scope of the drone program! Close Guantanamo!) but also consider where we are going, given our current paths.

I’m not about to get all Nate Silver statistical. I wish I could, but I can’t; I don’t have the quantitative chops. (And Nate Silver may not be globally scalable… but then again, who is?) However, I do suggest that, as international lawyers, it is good to think about some trends about where society is headed.

I am especially interested in the implications of technological change on efforts at coordinated multinational regulation… where regulation of new tech may be beneficial and where it may be detrimental to society and/or to innovation. (Uh, you know, issues having to do with African cyberpunk, DNA hacking and stuff like that. And don’t even let Ken Anderson (1, 2, 3, etc.) or me (1, 2, etc.) get started on robots…)

So I was happy to see that the current issue of Scientific American looks at “The Future of Science: 50, 100, and 150 Years from Now.” Heady stuff. Ubiquitous computing, biotech, colonizing Mars, possibly even my long-awaited flying cars. But reading this with the cool eye of a lawyer (as opposed to with the racing heart of my geeky Star Trek-loving, flying car-coveting self) one begins to see how intertwined these various scientific and technological topics are with questions of law and regulation.

When it comes to conversations about economic and technological innovation, the standard result is that domestic lawyers get slagged and international lawyers get ignored. But as a general matter, that shouldn’t be the norm in either case. And in these essays, and in some other recent writings on technological change, it isn’t.

For example, the Scientific American essay on the future of nuclear arms (summary, here), actually focuses on a regulatory question. This piece poses a (grim) scenario of what it might take to achieve comprehensive nuclear disarmament in the next 50 years.

Another essay, The Fate of an Engineered Planet, considers three century-spanning scenarios concerning geoengineering and climate change. How we innovate and deploy technology (and the effects of that technology on the environment) is intertwined with what we choose to undertake as coordinated policies. What will the world look like at Rio+100: a tragedy of the commons or a resilient community? The choice is ours.

Even my beloved flying cars have a crucial regulatory aspect. Because, when you consider what people are like driving on the ground does it make sense to let them control cars that fly? Do you want that idiot  in the left lane who’s texting and drinking his morning coffee while driving to try doing that while piloting an aerial vehicle in a congested skyway? No? The essay A Drone in Every Driveway  (summary) argues that the answer is to let the flying car fly itself.  Thus, not only technological change, but regulatory changes concerning pilotless vehicles (such as Google’s self-driving car [Youtube clip]  and drone tech) will make the flying cars more plausible. And, for autonomous cars (ground or flying) to have a global market, there will need to be coordinated–or at least non-contradictory–regulatory changes in many of the key markets around the world. So the regulatory environment (both in the U.S. and in other jurisdictions) of civilian drones and that of driverless-cars may incentivize or disincentivize investment in these and other new technologies.

For another look at technological change and what may be around the corner, you can also turn to the current issue of Foreign Affairs, which has an essay on the digital fabrication revolution (summary), aka “3-D printing.”  There has been much written about the decentralization of manufacturing technology, that digital fabrication may be having its “Macintosh moment” when a new technology becomes cheap enough and, well, cool enough, to become widely adopted. And then people start messing with it and finding ways to make it do things that the original designers never even thought of. That’s when things start to get really interesting, in both the good and bad sense of the word. We’ve already seen some of this regarding digital fabrication, in the story about attempts to use 3-D printers to print gun parts (possibly as a way to circumvent firearms regulation). Now spread this technology the world over. How much is hype versus reality? Risk versus promise? And how regulable is all this? Just one more emerging technology bringing a host of regulatory questions.

Finally, I suggest one recent law review article that considers one of the most important areas of technological innovation: self-replicating technology.  But my St. John’s colleague Jeremy Sheff looks at a self-replicating technology that is already here and ubiquitous: the seed. Here’s the abstract:

Self-replicating technologies pose a challenge to the legal regimes we ordinarily rely on to promote a balance between innovation and competition. This article examines recent efforts by the federal courts to deal with the leading edge of this policy challenge in cases involving the quintessential self-replicating technology: the seed. In a recent series of cases involving the invocation of the patent exhaustion defense by purchasers of Monsanto’s “Roundup-Ready” genetically engineered herbicide-resistant crop technologies, farmers have argued that Monsanto’s patent rights do not extend to the second generation of soybeans grown from a patented first-generation seed. In each case, the Federal Circuit found for Monsanto and against the farmers. The Supreme Court is about to take up the issue for the first time.

In this article, I argue that the Federal Circuit reached the right result in the Roundup-Ready cases, but that it failed to articulate a satisfactory justification for its decisions. That justification, I claim, is that the patent-based policy set by the Federal Circuit is preferable to alternative legal regimes — such as trade secret and contract law — because it avoids disincentives to competition, innovation, and dissemination of new self-replicating technologies while reducing transaction costs inherent in their commercialization. Importantly, however, not all self-replicating technologies are identical, and a categorical rule exempting them from exhaustion doctrine is unwarranted. I propose instead that application of exhaustion doctrine should depend on the patentee’s ability to charge supracompetitive prices in its primary market where consumers are able to substitute secondary-market embodiments

Jeremy’s paper is based in the present but it points a way forward for domestic regulation.

Technological change, be it evolutionary or revolutionary, is ever-present. Technology always holds the threat of being a curse as well as being a thing of miracle and wonder. The work of lawyers can foster innovation or deter it. It can also protect society or endanger it. Fostering innovation and protecting society are not mutually exclusive.  It all depends on how you go about it. Technological change poses three fundamental questions about regulation: whether we can regulate, whether we should regulate, and, if so, how we should regulate.  And, in our increasingly interlinked world, these questions are also issues of regulatory coordination, harmonization, and, of course, competition.

There’s lots of important work to do on these and on other pressing issues. So my New Year’s wish for you is: “May you work well this coming year.”  I know that sounds drab… but careful, thoughtful, legal work is very important in a time of rapid change. It is one of the things that keeps “interesting times” from becoming a curse. So, put another way: “May you live in interesting and wondrous times.  We’re just going to have to work at it.”

 

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