One of the (many) remarkable things about the growth of social media over the past decade is that what had initally seemed like a fad, and then was reborn as a business model, has now simply transitioned into being the landscape itself. As a lawyer who deals with such things, I’ve been fascinated to watch the number of “social media” questions I get each week steadily shrink. Instead of “please help me with this Facebook issue!” or “Twitter is driving me crazy!” I’m getting more questions that just presume a social media component. The fact that a media campaign, or a branding effort, or a promotion, or a creative work of any kind, is going to be shared, featured or used on social media is standard operating procedure, not a special feature. This has become so much the case that it makes you wonder if social media is even worth talking about as an independent phenomena anymore. Once everything is social media, why bother to act like its different from the entire world.
I’ll be honest: most of my speeches and articles and blog posts and tweets over the years have centered on the basic fact that social media is different from what came before. It is the opposite of broadcast models. It requires you to get into conversations. It requires you to view your IP rights and your customers and your competitors as participants in your marketing practices rather than a mere audience. But at this point, that’s all a given. If you do virtually anything in the world — as an individual, a company, a government, a charity, you name it — there is a social media angle. Looking at Google News, I cannot find a single thing that happened this week that wasn’t somehow affected by social media, and in many instances was platformed on social media itself. Isolation from the social web and the mobile web and whatever else you want to call it is now a pipe dream for everyone who engages in moderen commerce, political activism, government service, artistic expression, or even tries to get a date.
So maybe we need to reorient ourselves. When Neal Stephenson goes to work on a new business that promises to bring the world of Snow Crash (and, cough cough, The Secret Root) into being, where we won’t simply talk to each other on social media but will live our lives inside electronic networks that mimic our physical reality, perhaps we should consider ourselves near the end of the “social media era.” When something is so pervasive that the world cannot be separated from the phenomena anymore, and the law is finally beginning to adjust to the new reality (although we’ll have more to say about that soon), and the next things can already be seen on the horizon, that’s the moment when the paradigm has completed its shift. But that’s also the moment where we should buckle our seatbelts.
Everything is about to change. Again.
In our modern media age, it sometimes feels as though everyone in the entire world has noticed the same thing at the same time. So it is with the Deep Web and the darknes that lurk in the shadows – it was an obscure topic until few months ago, and now your grandparents have probably heard of them. Once the type of thing that only geeks (like me!) would think and/or talk about, the topic has now made the front cover of Time Magazine (in a piece by legendary fantasy author and critic Lev Grossman). It has also made national news (with the takedown of the infamous SIlk Road marketplace) and inserted itself into a far more noticeable place of prominence in our culture.
These hidden sites can be found through a collection of anonymous servers that enable a vivid underground of dissidents, hackers, criminals, law enforcement, drug runners and folks who seem like refugees from a James Bond movie. All you need is a specialized tool like TOR, and (if you believe the stories) you can live a secret life online. But should you care? As a character says in one of my novels, “you may not be interested in the deep web, but the deep web is very interested in you.”
In the past when we talked with clients about the dark sites of the deep web, people really thought that it sounded like something out of a William Gibson story, like Chiba City in Neuromancer, or the Night Market in Nick Harkaway’s Angelmaker. But now companies are suddenly finding themselves confronting deep web issues as never before, whether because someone has “doxed” their employees or executives (by releasing personally identifiable information on persistent sites that cannot be taken down), because their products are being counterfeited and distributed by online networks, because they are being defamed on chat boards that cannot be reached let alone turned off, because someone has used TOR to anonymously hack their passwords — the possibilities are endless, troubling, and happening now. If you want to steal someone’s trade secrets and want to ensure that the transaction is untraceable, suddenly there are tools to accomplish exactly that. If you’ve learned how to copy a product using a 3-D printer, you can distribute the plans. If you want to cause trouble, you can hire someone directly to do that, pay them in bitcoins, and watch the damage from afar.
As a lawyer, it is impossible not to see how this is going to have a dramatic impact on IP, privacy, and nearly every other thing we do. The Internet of Things is coming shortly (the FTC just held a workshop on the topic this week), and the facial recognition technologies and environmental advertising predicted in Minority Report are no longer futuristic fictions. 3-D and electronic printing promises to give ever smaller groups the ability to make things based on electronic schematics without access to heavy industry. More and more information will be available about more people, and will be available to more people – and the fact that there are genuinely secure ways where those who are so inclined can use that data for criminal purposes should give everyone pause.
To be sure, all of this seems rather abstract, and it can sound like a tabloid scare tactic. But there are some things that everyone can do to deal with the risks in their own lives. First, engage in some data security hygiene: change your passwords regularly, don’t pass them out, don’t allow them to be easily engineered by people who know a few random facts about you. Second, think about whether you are in a business where people will want to copy your products, will want to pretend to be you, will want to steal your information. If you are that type of business, it is worth checking from time to time to see if you have been targeted. And finally, as always, if is critical that everyone in this day and age try to stay abreast of what is happening in the world of tech – it is easy to assume that because you make donuts, or own a small clothing store, or manage a bank, or run a hedge fund, that you don’t need to know about the cutting edge developments coming down the pipe. But you do. The time when you could just stick to your knitting and ignore the tech world is past, and you need to assume that the tech world is very interested in you, indeed.
Check out my newest piece on 3D Printing (which, by the way, is going to a huge new issue in social media, as plans for “counterfeit” items are exchanged everywhere) at the Life Sciences Now blog!
Tasteless comments about the growth of social communication often fall back on the hackneyed metaphor of “spreading like a cancer.” The growth is uncontrolled, we are told, metastasizing in unexpected locations with ruthless speed. The body politic, we are told, is being rotted within by mutation. The traditions of the past are under siege, and we require radical surgery for a cure.
The panic is unwarranted, but the metaphor may be more apropos than we realize.
The astonishing (and Pulitzer Prize–winning) The Emperor of All Maladies describes the halting progress made in the fight against cancer since it was first identified by the Egyptian physician Imhotep 4500 years ago. For most of that grim history, cancer has been misunderstood, misidentified, and a hopeless diagnosis for its victims. Research was driven by a small number of obsessed, charismatic individuals, many of whom were unaware of related analyses being performed by doctors elsewhere—people didn’t know things, and when they did it was not disseminated quickly or effectively. Social and intellectual stigmas slowed research. Nearly every advance in the treatment of cancer, from radiation therapy to chemotherapy and beyond, has come about within the lifetime of my grandparents.
And speaking of my grandparents, my grandmother was diagnosed with breast cancer in the late 1960s, but passed away in 1997—30 years later. She was part of the first generation of cancer patients who expected to survive. Yet she and her contemporaries whispered the word “cancer” as though to speak its name would give it a totemic power. Her battles were unmentioned, a private war fought behind closed doors, alone and largely silent.
Contrast that approach to the story of Xeni Jardin, one of the editors of Boing Boing, among the top sites on the Internet. She live-blogged her first mammogram, which returned a diagnosis of breast cancer. She has a Pinterest Page entitled “my life, now, with breast cancer” showing pictures of her medication, the ginger ale she uses to prevent chemo-induced nausea, and various inspirations for her feelings on a given day. And this open approach isn’t limited to patients: Researchers now collaborate across electronic networks and borders, sharing information, ideas, and case studies. There is no isolation anymore in the fight against cancer. Even the best young adult novel of 2012, The Fault in Our Stars, was a dark romantic comedy about teenagers with cancer—the critical moment in the book comes when a group of teens get together to talk about their afflictions.
What do all of these stories have in common? They are all about cancer, but they are also about communication and the way that communication has transformed the way we think about disease, its treatment, and the connection between those who develop treatments and those who are treated. The story of cancer in many ways mirrors the story of the life sciences more generally, and how social interaction—and the legal implications for that social interaction—are shaping a different world.
Once upon a time, there were patients, and there were doctors. Patients were sick, doctors tried to repair them. For many centuries, that involved putting their humors back into balance through a variety of ineffective techniques that ranged from blood-letting to therapies best not mentioned before eating. Some doctors were also intellectuals, and engaged in some variety of research, or writing, or teaching. But there was no class of research institutions, and no infrastructure for solving problems. Information moved slowly, when it moved at all, and only a small number of people were sufficiently aware to do anything with that information even if they received it.
Today, there are patients, there are doctors, there are drug companies, there are university researchers, there are academic medical centers, there are government researchers, there are patient advocacy organizations, there are charitable foundations, there are social media platforms, there are large databases of clinical information, there are computer software modeling companies, there are regulators, there are investors, and so many other types of participants in the world of the life sciences that to name them all would be an exercise in futility. They all want information. They all want to know the latest facts. They all want everything to happen immediately, and they want to know about it as soon as it happens.
Yet the law is not about immediacy. The law is about considered approaches to a variety of competing interests. Despite many of our preconceptions about free speech, the law does not want us to know everything right away, or to have access to all treatments right away. Regulatory approvals, research, and intellectual property protection all come before treatment. This was fine in a world in which no one really knew what was going on—but with the growth of social media platforms and specialized advocacy groups, information is disseminated at the speed of light. Once on the market, drugs and medical devices are no longer quietly promoted to medical professionals, but are advertised to the public at large. More people think that they are the target audience, and are insulted when they are denied what they want.
What this means is that the law is often seen today as an obstacle to progress, rather than a facilitator. This does not mean, however, that the law can or should be ignored—quite to the contrary; the law and its application to the regulation of communication about the life sciences has never been more important, and regulators have never been more active. Rather, it is instead important for lawyers and marketers and researchers and businesses alike to recognize the meaning of this change, and to take that meaning into account in how they engage in their legal clearance, which is no longer taking place in a vacuum. Ironically, we are all under a microscope.
Every step of the process of researching, developing, clearing, marketing, and using any medication or device is now subject to a meta-conversation, a discussion about the wisdom of every path taken, of every decision made, by every participant in the chain. I have often spoken of the internet and social media as “the end of forgetting,” as all things said online rapidly become your permanent record. This means that our words are promiscuous, merging with other communications from other sources, and swirling around platforms that we have never seen or engaged with. The brands we create develop lives beyond the basket of associations we assign to our products, and we must participate in the conversation or allow the discussion to turn against us.
So what does all of this really signify? Most discussions of the law by lawyers talk about specific changes in the law, and how they can be addressed by their clients. But for a lawyer who works in social media, that perspective is far too limited. The technology changes too quickly, and the culture shifts every day (to feel profoundly behind the curve, just ask a 13 year-old about the technology choices she makes, and why). Instead, clients and lawyers must focus on trying to become more aware of the context for these discussions, and the technological advances that give them momentum. A life sciences company that is not profoundly sensitive to the social media environment and to the legal implications of their participation (and the participation of their ultimate customers, whether doctors or patients) is not only potentially getting into trouble (the lawyer voice inside me is screaming “what about the adverse event reporting? What about the privacy considerations?”), but also missing out on incredible opportunities.
My grandmother didn’t want to speak about her illness, even as she fought it successfully for decades. Today, everyone has a megaphone, and they want to talk. So don’t pretend that the world is the same. Figure out how to join in the conversation.
I spent a significant amount of time over the past several years closely monitoring the epic Barbie v. Bratz battle in California. Much of the case, as many reporters have noted, centered on efforts by toy companies to recapture the highly prized demographic of girls between the ages of 9 and 12. Once upon a time, these girls were major doll consumers – I vividly remember girl classmates talking about Barbies in 5th (and maybe even 6th) grade. Of course, my youth was during the Pleistoceine era, so my memory may not be perfect.
Today things have changed, and doll play has moved younger and younger down the age chain — a fashion doll that would have once been the province of a 10 year old is now the plaything of a six year old. The industry even has a catchy name for this phenomenon: GPOY (girls playing older, younger). By the time girls are 12, in many cases they have largely abandoned toys altogether — a problematic development, as you might imagine, for companies that make toys.
The Official Son of Legally Social is 13, so I get a chance to observe this demographic from up close on a regular basis. And with this perspective, it seems to me pretty obvious how — and why — this has happened over the past two decades. But more importantly, the transformation we see in kids today holds a lesson for all of us who think about social media, and what we can expect as the future hurtles towards us at alarming speed.
But first some history: Kids are self-evidently creatures of popular culture, but this has not always been the case. In fact, popular culture is a fairly new phenomenon itself. Before the media age, the notion of a non-localized popular culture was simply non-existent. This is critical to keep in mind, because the rapid changes of the past few years are completely consistent with the changes that have taken place over the past 100 years in our society at large, and the implications for how we address the legal concerns that arise in this context are dramatic.
Once upon a time, speech was inevitably a limited phenomena. Literacy was fairly restricted, and the only form of communication in most scenarios was oral. This led to social silos (fairly limited social groupings that had interests in common, geographically isolated). As Gregory Clark discussed in his epic A Farewell To Alms, until the beginning of the 19th century most of the world, including most of the Western world, lived in fashion no different than our Stone Age ancestors. This was not that long ago — in fact, the grandson of President John Tyler (born in 1790) is still very much alive today.
So the media age, as we understand it, is in human terms something still in its infancy. We have gone from letterpress pamphleteers to Facebook in a handful of generations. My grandparents were the first generation to experience radio, and my parents the first to experience television. But while this is startling to adults who remember the 8 track tape, this is even more dramatic in its impact on kids, and how our culture and its laws will develop over the next several years.
Kids historically had little social autonomy. The classic film A Christmas Story vividly describes a world where kids talked to their neighborhood friends, and the grapevine of misinformation was an endless game of operator. Kids could receive some information, but could not broadcast it on their own. They had no freedom to develop an aesthetic, because they had no freedom to do anything in particular, because their world was limited, and they didn’t have access to anything other than advertisements in the newspaper and the holiday window at Higbee’s department store.
It goes without saying that today’s world is saturated with popular culture. Every square inch of your life is filled with commercial advertisements, music, hundreds of channels of content, millions of websites offering fellowship based on the narrowest or broadest of criteria, and mobile devices that can connect you at a moments notice to any piece of information imaginable. If you are an adult, and have well developed filters to sift through this deluge of content, it’s still difficult to assimilate: There are privacy settings on every platform. There are restrictions on the sharing of content in some contexts, but not others. Some things on the Internet appear to be freely copied, while others will get you fined. The same water-cooler conversations that took place for decades may now get you sued for defamation, or fired. All of the legal restrictions on the flow of information that have always existed but were irrelevant to individuals now apply to you.
But imagine if you are a kid. Now everything becomes “old” in record time, as the newest “new” thing comes into your vision only days (hours?) after your last experience. Something that may have been enjoyable for years in a prior generation is now replaced by a yearning for the next experience almost immediately. You become jaded sooner, become a teenager sooner, become a consumer sooner. You have the ability to communicate your thoughts and desires to the world, not just to your friends. You have a mobile device on you at all times, and every thought that enters your mind can now be broadcast with or without the application of judgment you may or may not have had a chance to develop. One teenaged daughter of a friend was recently offended that her parents might want to look at her tumblr — “my tumblr is for me” she said, even though it was visible to millions of people and had thousands of followers.
The law doesn’t think about any of this. Oh, sure, the FTC just revised its approach to the Children’s Online Privacy Protection Act (COPPA), to take into account the fact that social media and geolocation exist, but that hardly matters. The social context for social media and mobile communication is moving so much faster than the law can possibly adapt, and kids are the bleeding edge of that transformation. They are not only playing older at younger ages, they don’t even realize that they are playing anymore, using adult tools.
So be systematic, and think about these issues now before you have a problem. You can’t be reactive in a world that moves too fast for adults.
I heard you gave up your blog for Twitter….I heard, that you gave up Twitter for Pinterest….I heard…
You may have noticed that I have been spending a great deal of time on Twitter over the past several months, and far less time on this blog. That is, as far as I can tell, the trend for many folks in the social media world. That isn’t to say that I haven’t been writing (you can find two of my recent blog posts at the awesome LifeSciencesNow site put together by my colleagues at Drinker Biddle & Reath — those posts, on IP and the Life Sciences, and the FTC’s recent privacy guidance, are here and here) but it means that the immediate interactivity of Twitter has become increasingly important, and attractive
Recently, I live-tweeted a DBR webinar on healthcare and social media (you can find the discussion on Twitter at #dbrhealth) and a number of sessions at the International Trademark Association annual meeting in Washington DC (you can find those discussions at #INTADC). So does this mean that the long-form blog is a thing of the past? Of course not. Many subjects simply cannot be discussed in 140 characters or less, and extended analysis will always be needed. But, the growth of Twitter as a platform means that quick reference to important news can be made on the fly, and that that discussions can take place in a public space.
So (and you knew this was coming, right?) what are the legal implications? If people spend more and more time in the hit-and-run atmosphere of Twitter, they are less likely to read disclaimers, they are less likely to understand (or even perceive) larger contexts, and they are far more likely to say things in the heat of passion. Endorsement issues (still a concern of the FTC) become magnified in an environment where the only way you can communicate that you are a paid shill (I mean, spokesman) is through a hashtag (although many companies are working on technical solutions using the appearance of the tweet to indicate the source).
Again, all of this means that companies and individuals must (as always) seriously consider their social media activities — do you have a policy, what is that policy, and why do you have that particular policy. Social media use should be an excuse to engage in systematic introspection — why and how are you engaging with others on social media, and what are the implications for you, your brand and your lawyers?
If you work in social media, you can’t simply adopt a position and expect it to have relevance a year later. You need to constantly be reconsidering your approach, and whether the legal landscape has changed. Only through constant vigilance can you maintain an edge in this wired world.
It is difficult to read the business pages without running into a story about patent litigation. It is, quite frankly, everywhere, and has become a significant element of long-term business strategy for businesses big and small. We’ve written about this before, of course (in the ever popular post “Are you infringing someone’s social media patent? Probably!”) but given the landscape it is a subject worth returning to in somewhat greater detail.
So what do I mean by “everywhere”? Apple and Samsung are engaged in a series of major battles both here and around the world, while Google and Oraclefight it out in California. I receive news each day listing the newest cases filed around the country, and it is rarely fewer than a dozen on any given morning. There are publicly traded companies that do nothing other than buy patents and seek license fees. There are literally thousands of lawyers across America litigating patent disputes at any given moment, and it is rare than a patent case is worth less than seven figures — in fact, litigating a patent case generally costs at least seven figures.
As you might imagine, these cases are not all the same, and do not follow a “standard” format. To be ridiculously simplistic about it, there are three different “categories” of cases, and anyone involved in new media needs to understand the substantive differences between them.
The first type of patent case is the classic one: competitor v. competitor. For most of American history, this type of action represented the vast majority of all patent disputes. Kodak sues Polaroid. Apples sues Samsung. Historically, companies developed patent portfolios to defend themselves, and often countersued. In many instances, the action would settle with a complex cross-licensing scheme. This is the type of case that anyone can (and should) plan for if they enter a market defined by innovation. You need to determine whether your own innovative activities can help you build a patent portfolio, and you need to determine whether your competitors are doing (or have done) the same. While the patent system is not exactly transparent, a systematic effort to capture your own innovation and track the efforts of your competitors is simply smart business.
The second type of patent litigation has become quite significant in recent years, and is focused on so-called patent holding companies (or, when being pejorative, “patent trolls”). These companies either buy patent portfolios. Their goal: licensing revenue. Many of these patents were developed by companies that have since gone under, or were purchased from companies that have left a market segment. These “non-practicing entities” often sue in one of a handful of patent litigation meccas. For many years, that was the Eastern District of Texas. More recently, with changes to the patent laws, Delaware and California have become more popular. The docket sheets are filled with this type of litigation, which rarely goes to trial. After all, a settlement is the primary goal, rather than having a market impact. Also in this category are cases brought by companies who suddenly discovery they have random patents in their portfolio that have nothing to do with their current line of business, or Universities looking to monetize some of their patent assets.
Finally, there is litigation spurred on by strange regulatory schemes, such as the ANDA litigationin the pharma space, or litigation brought through the International Trade Commission (which has no ability to award damages, but can exclude imported good from the United States). These are less relevant in cyberspace, except to the extent that eCommerce platforms are either selling drugs or imported goods.
So what does this mean for all of us? It means that patent litigation is something that must be considered as a risk factor when launching new businesses or product lines. Do you have competitors that may be developing a patent portfolio? Have you been developing a patent portfolio? Were there other companies in the space that have since failed that may have developed patents that could now have found their way into the hands of a licensing organization? These are things to think about — they shouldn’t stop you, but they should remind you that patents are not just for IBM anymore.