The film, music, and publishing industries have always cried, “Wolf!”

I’ve written before about how the film industry decried and fought the VCR. In 1982, Jack Valenti, in sworn testimony before Congress, stated that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” Of course, the Supreme Court upheld the legality of the VCR and the film industry not only prospered; it makes more money from home video sales than from from the theatrical box office.

Mike Masnick at techdirt does a far more thorough job, setting forth the long, continual, and continually misbegotten history of existing industries decrying the doom foretold by emerging technologies. He starts with John Philip Sousa, the conductor.

In 1906, he went to Congress to complain about the infernal technology industry and how it was going to ruin music:

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

It’s a long and hilarious history. Did you know that in the 1980s home taping was “killing” the music industry? That using your DVR is theft? That Thomas Edison argued that film projectors would kill the film industry?

The whole thing is worth reading and worth remembering next time you read a screed by Bono or Scott Turow.

New solutions for new problems: who knows your passwords after you die?

Here’s a new problem: how do your heirs get access to your financial accounts and other online information after you die? You can, of course, be sure to maintain a file of your user names and passwords, but you run the risk of forgetting to change the list as you change passwords, and who among us has compiled such a list?

Into the vacuum created by such needs come solutions. As Rafe Needleman writes, “Legacy Locker simply backs up the passwords and access codes to your online accounts. When you die, it gives that information to the people you designate.” And the system (scheduled to become operative in April) comes with all sorts of backup systems built in:

The system periodically tries to log on to your accounts for you. If it can’t–if you’ve changed passwords–it alerts you to update your records. Also, Legacy Locker only unlocks if two people whom you’ve designated confirm your death, and even then only if one of them supplies a death certificate to the company. Legacy Locker staff handles this; the unlock procedure is not wholly automated. Toeman claims that the system’s files are all encrypted and cannot be unlocked without authorization.

Of course, it comes with a price — $29.99 a year or $299.99 for a lifetime subscription. And Life Locker plans to market itself primarily to estate planners, who will pass on the cost to their customers.

And, of course, I hope it’s not just a very effective phishing scheme.

Want to be an innovator? Be a first follower! And Andrew Dubber is worth following.

It all started here:

And then a friend of the guy who made the video, Andrew Dubber, announced that he would make it possible for you to be a first follower:

30 ideas in 30 days

Starting Wednesday March 3rd, for 30 days, I’m going to put one idea per day up on this blog.

It could be any sort of idea: a business idea, an idea for a board game, a tv show, an observation about the world that could be turned into a book, an invention, a website idea – anything.

I’ll explain the idea in its most basic form – my humble equivalent of a 3-minute TED talk… and then I’ll walk away. Anyone who wants the idea is welcome to it, and can run with it under exactly the same terms and conditions of Derek’s idea.

I don’t guarantee that any of my ideas will be as good as any of Derek’s. That’s not what this is about. I don’t have to be as good at dancing as him, I just want to get up and dance too.

How to come up with new solutions: try out new ways of using old ideas and take chances.

From Guy Kawasaki’s interview with Scott Berkun, author of The Myths of Innovation:

Question: Where do inventors and innovators get their ideas?

Answer: I teach a creative thinking course at the University of Washington, and the foundation is that ideas are combinations of other ideas. People who earn the label “creative” are really just people who come up with more combinations of ideas, find interesting ones faster, and are willing to try them out. The problem is most schools and organizations train us out of the habits.

Question: Why do innovators face such rejection and negativity?

Answer: It’s human nature—we protect ourselves from change. We like to think we’re progressive, but every wave of innovation has been much slower than we’re told. The telegraph, the telephone, the PC, and the internet all took decades to develop from ideas into things ordinary people used. As a species we’re threatened by change and it takes a long time to convince people to change their behavior, or part with their money.

Question: How do you know if you have a seemingly stupid idea according to the “experts” that will succeed or a stupid idea that is truly stupid?

Answer: Don’t shoot me, but the answer is we can’t know. Not for certain. That’s where all the fun and misery comes in. Many stupid ideas have been successful and many great ideas have died on the vine and that’s because success hinges on factors outside of our control.

The best bet is to be an experimenter, a tinkerer—to learn to try out ideas cheaply and quickly and to get out there with people instead of fantasizing in ivory towers. Experience with real people trumps expert analysis much of the time. Innovation is a practice—a set of habits—and it involves making lots of mistakes and being willing to learn from them.

How does legal innovation occur? Slowly, by looking to the laws of other countries, and by disguising innovation as interpretation.

In “Inventing Invention: A Case Study of Legal Innovation,” Professor John F. Duffy recognizes that change and evolution in law are taken for granted but rarely studied in depth: “Legal change is treated as if it is something that just happens-that follows inexorably from the emergence of social needs and changed social conditions.” Duffy’s article is an antidote to these truisms, studying in depth the development of the requirement that in order to be patentable an invention must be “non-obvious.”  Duffy identifies in the development of this major legal innovation several characteristics he believes could be generalized to a lot of legal innovation:

(1) “Nation-states do not seem to create new legal conceptions independently nearly as frequently as they borrow them from other nation-states.”

(2) “Nations with similar legal cultures and industrial capabilities, such as the United States and England, sometimes maintain significant differences in their law for periods of decades. The speed of convergence on a single ‘common’ law seems extraordinarily slow.” This deliberate pace seems to be the product of a wait and see attitude: “because [one country does] not know whether the innovation is a pathbreaking and salutary development, like obviousness, or a disastrous experiment that will eventually be discarded,” it will wait and see the results.

(3) Courts are wary of the criticism often directed at them for “making policy” rather than merely applying existing law. As Chief Justice John Roberts puts it, his role is merely to be an umpire, not to determine what is a ball and what is a strike. Of course, Roberts ignores the fact that a strike zone is rather well defined, whereas law is full of open-ended standards (the requirement of “due process,” for example), gaps that do not fit cases that courts must decide, and outright ambiguities. But, as Duffy points out, the attitude Roberts exemplifies forces courts to engage in innovation under the guise of mere intepretation: “even when courts are trying to change the law, they often deny that they are doing so by creating clever reconstructions of the language that previously defined the relevant doctrine.”

The financial crisis is an opportunity for innovation in legal practice and law schools.

This blog is supposed to be about law and innovation — both the ways law affects innovative and creative endeavors and the ways creativity informs the practice of law.  I’m not sure where I go t the nerve to believe I have something worth saying on these matters, but it is gratifying when I find out that I’m not entirely empty-headed.  The New York Times yesterday published an editorial observing that the economic downturn is hitting the legal profession just as profoundly as it is hitting any other occupation.  As the Times notes, The “American Lawyer is calling it ‘the fire this time’ and warning that big firms may be hurtling toward ‘a paradigm-shifting, blood-in-the-suites’ future.” The thrust of the editorial, though, is that crisis is an opportunity for change and that the legal profession is much in need of change: “The silver lining, if there is one, is that the legal world may be inspired to draw blueprints for the 21st century.”

I am not at all happy with the job market, especially for my students.  They are talented, well educated, and hard working people who will do a lot of good for their clients.  But I am gratified that the types of changes the Times are ones I’ve long believed are important.  I do believe the U.S. legal system is a brilliant embodiment of practical justice, but it’s biggest defect in achieving justice is its cost.  It is appalling that achieving any sort of justice against any adversary willing to fight you (regardless of the merits of his cause) will invariably cost you enormously.  The fact someone whose position has little or no merit can make you expend enormous amounts of money to prove the demerits of his claims undermines justice by tilting the entire system radically in favor of the more wealthy members of our society. The internet has brought home this phenomenon to artists who want to make their work available and to people who want to post their family videos, but it will be one familiar to anyone who has called upon the legal system or been dragged into it, whether through divorce, the need to obtain payment from one’s customers, the need to get relief from economic or physical threat, or any of the myriad other ways one might need to call upon legal process to attain justice.

Two ways the economy will force down the costs of using lawyers are (1) the salaries of lawyers at the top end (which the Times notes begin at $160,000 at the wealthiest law firms) will have to be reduced and (2) the reduction of money available to spend on lawyers will mean “more leverage to push . . . for successful outcomes” on the part of those who have traditionally been less well financed.

Moreover, law firms will have to change their billing practices, replacing the “billable hour,” Law firms also, of course, will have to come up with more efficient ways of delivering their services.

The Times also suggests the economic crisis might require law schools to “become more serious about curricular reform,” in particular by “including more focus on practical skills.”  I could not agree more — making clear the inextricable bond between legal theory and legal practice has been central to my work as a law professor.  I don’t understand how you can teach law without understanding how it works.  My conviction is evidenced, I hope, by the school i’ve chosen to teach at this year and (at least) next, the University of Detroit Mercy Law School.

But I am skeptical of the power of the economy to change law schools.  Lawyers and judges have for a long time called for  law schools to focus more on training lawyers (rather than teaching legal theory in a way that makes sense primarily to law professors, not lawyers or judges), and still the changes have been very, very slow and very, very minor.  Law schools do not look to their success at training lawyers to guide their curriculur decisions; rather, they principally look to a rankings system that rewards law schools that admit students most like the students at the schools that are already the highest ranked. That’s a formula to entrench the status quo, not a formula for change. Nor does the critique from within law schools of the most influential rankings system really do much to solve the institutional deference to the status quo.  Brian Leiter, a law professor at the University of Chicago, publishes his own rankings and regularly critizises the most influential rankings, but even he relies principally in judging law schools on the “scholarly reputation” of faculty (which is largely based on where the professors teach and the law reviews in which they publish, both of which are merely indicators of how well those professors fit the prevailing view of quality) and student undergraduate grade point averages and LSAT scores (both of which correlate to success as law students, not as lawyers).

It cannot hurt, though, that the New York Times has joined the chorus calling for law school’s to focus their curricula more on the practice of law.

The law firm of the future?

The Toronto Globe and Mail reports on Richard Susskind’s predictions regarding the future of lawyers and law firms.  Susskind is no one to be ignored; in 1996, when he predicted that lawyers would soon send legal advice and most legal documents via e-mail, he was derided and even considered dangerous.  I can testify first hand to the resistance law firms had to the internet.  Even earlier, in 1994, I lobbied my firm for an extra telephone line so I could attach my personal laptop’s modem to the dialup connection for my Manhattan-based ISP (the innovative and much-missed “Pipeline“).  My firm hemmed-and-hawed and finally refused my request, worried somehow that the connection threatened their own internal computer network.  Try as I could to explain that the phone line and the network had no connection to one another and that, therefore, the access through the phone line could in no way provide access to even the most sophisticated of post-Soviet criminal hackers, I was unable to get permission.

It’s hard to believe that was only fifteen years ago.

Now, Mr. Susskind predicts for the near future:

Small law firms that dispense customized legal advice will be pushed out of business by technology-savvy and more nimble firms that dispense run-of-the-mill advice and legal documents through websites. Larger law firms will evolve into commercial enterprises with vast stables of legal, accounting and other experts geared to preventing and managing clients’ legal risks. These big firms will outsource basic legal services to cheaper quasi-legal experts and they will build retail kiosks or websites that allow clients to download regulatory expertise and draft legal documents any hour of the day.

And, of course, it is already happening.  Linklaters LLP, a London-based law firm, has long had a “Web-based service called Blue Flag that allowed clients to research regulation and compliance standards around the globe.”  Other firms use “online document drafting services to download within minutes financial term sheets, employment contracts and other standard documents.”  In addition, “a pair of retired U.K. judges recently launched an Internet startup that allows lawyers to quickly generate judicially approved directives and motions for the courts.”  Just last November, Toronto lawyer Michael Carabash launched an online legal service called Dynamic Lawyers that charges lawyers a modest annual fee of $30 to connect with individuals who privately post legal questions on the website.”

On another point, already addressed on this blog, Mr. Susskind predicts a ‘radical shakeup’ of law firm billing practices that charge clients according to hours of service provided. The days of billable hours are numbered, he said, because it ‘rewards inefficiency’ by handing the largest pay for the most time spent on an assignment.

What will the next great innovation be in online legal representation?  Stay tuned.

The Great Emancipator, 200-year-old mashup artist

Reflecting on Abraham Lincoln’s 200th birthday, I’ve made the startling discovery that he was not only an inventor but that he espoused ideas that constitute one of this blog’s principal themes — that innovation and progress require the technical capacity and the legal freedom to exploit existing knowledge.

I hadn’t learned in school or in the many books I’ve read about him since that Lincoln  is the only President to have applied for and received a patent. It was for a device to lift boats over shoals. In fact, throughout his life Lincoln was fascinated by mechanical devices. William H. Herndon, his law partner, wrote that Lincoln “evinced a decided bent toward machinery or mechanical appliances, a trait he doubtless inherited from his father who was himself something of a mechanic and therefore skilled in the use of tools.”

On February 11, 1859 (on the eve of his 50th birthday and precisely 150 years prior to the moment at which  I am writing this post), Lincoln delivered a lecture on “Discoveries and Inventions” in Jacksonville, Illinois. Published as the “Second Lecture on Discoveries and Inventions,” Lincoln described the U.S. as the embodiment of a youthful vitality that caused some to think it “conceited and arrogant” but also made it “the inventor and owner of the present, and sole hope of the future.”

Lincoln attributed this extraordinary national role to America’s capacity for innovation:

The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements.

But Lincoln didn’t consider America’s talent for innovation to be the product of some unprecedented national genius. Instead, its inventiveness resulted from the recognition that innovation requires using and building on earlier innovation. Thus, speaking of the invention of the steam engine, Lincoln made clear that his comparison of “Young America” to “Old Fogies” was ironic:

[W]as this first inventor of the application of steam, wiser or more ingenious than those who had gone before him? Not at all. Had he not learned much of them, he never would have succeeded—probably, never would have thought of making the attempt. To be fruitful in invention, it is indispensable to have a habit of observation and reflection; and this habit, our steam friend acquired, no doubt, from those who, to him, were old fogies.

Furthermore, while humans instinctively exchange knowledge, the progression from speech to writing to printing was indispensable to “facilitating all other inventions and discoveries”:

When man was possessed of speech alone, the chances of invention, discovery, and improvement, were very limited; but by the introduction of each of these, they were greatly multiplied. When writing was invented, any important observation, likely to lead to a discovery, had at least a chance of being written down, and consequently, a better chance of never being forgotten; and of being seen, and reflected upon, by a much greater number of persons; and thereby the chances of a valuable hint being caught, proportionally augmented. By this means the observation of a single individual might lead to an important invention, years, and even centuries after he was dead. In one word, by means of writing, the seeds of invention were more permanently preserved, and more widely sown. And yet, for the three thousand years during which printing remained undiscovered after writing was in use, it was only a small portion of the people who could write, or read writing; and consequently the field of invention, though much extended, still continued very limited. At length printing came. It gave ten thousand copies of any written matter, quite as cheaply as ten were given before; and consequently a thousand minds were brought into the field where there was but one before. This was a great gain; and history shows a great change corresponding to it, in point of time. I will venture to consider it, the true termination of that period called ”the dark ages.” Discoveries, inventions, and improvements followed rapidly, and have been increasing their rapidity ever since.

It is easy to imagine, then, that Lincoln would revel in the capacity of today’s technology to copy and disseminate information world-wide in mere moments. Without the technological capacity to pass knowledge across time and space, “[i]t is very probable—almost certain—that the great mass of men . . . were utterly unconscious, that their conditions, or their minds were incapable of improvement. They not only looked upon the educated few as superior beings; but they supposed themselves to be naturally incapable.”

But it was knowledge, not intelligence, they lacked.  Lincoln knew innovation is not the product of individual genius towering above the mass of humanity.  It is a collaborative enterprise that grows from one person’s creative use of someone else’s invention, which itself appropriated another’s discovery that was inspired by something written across the world in an earlier century.  To think it could be otherwise is to enslave humanity not on a plantation but in ignorance:

To emancipate the mind from this false and under estimate of itself, is the great task which printing came into the world to perform. It is difficult for us, now and here, to conceive how strong this slavery of the mind was; and how long it did, of necessity, take, to break its shackles, and to get a habit of freedom of thought, established.

It is even more difficult for us, for whom the printing press seems the equivalent of cuneiform.  But if we are to overcome the challenges we face, we must embrace the full potential of the technology that makes it so easy to improvise on the creations of others.  It is improvisation and reworking and remixing that leads to innovation and progress.

Who knew that Remix Culture is merely an appropriation of Abraham Lincoln’s thinking, that the Great Emancipator believed that for humans to be truly free  knowledge must be free too?