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.
A great deal has been going on in the world of social media, ranging from the obvious (the continuing fight over SOPA and PIPA between content providers and the tech community) to the subtle (the Supreme Court’s decision yesterday that GPS tracking devices are 4th Amendment-regulated searches — a ruling that will have interesting implications for geolocation and the privacy policies yet to come). As part of the Legally Social World Tour, 2012, I will be speaking about many of these issues at the following upcoming events:
1. I will be moderating the panel on Social Media and Digital Rights tomorrow in Princeton New Jersey. This event, sponsored by the New Jersey Technology Council, promises to be fascinating, with prominent panelists such as Paul Nolting, Senior Counsel at Verizon Wireless and Stephen J. Schultze, Associate Director, Center for Information Technology Policy, Princeton University. If you’re in the neighborhood, I highly recommend the event.
2. I will also be moderating a panel for the second straight year at the McCarthy Institute Symposium on Trademark Law and its Challenges. Information on the symposium can be found here. This is one of the best, and most provocative, symposiums on intellectual property law going on today, and features a keynote speech from Professor Thomas McCarthy, the dean of intellectual property law in America. I will be hosting a panel on “Government and Quasi-Government Efforts to Protect IP,” including the current Chairman of ICANN, Steve Crocker.
2012 is shaping up to be another dynamic year for social media, intellectual property and the law. Stay tuned for further developments…
My sabbatical from blogging this year was quite busy (unfortunately, vacations from blogging usually result from too much activity, rather than a desire to “get away from it all”). Specifically, I found myself at three different trials (ranging in subject matter from girl’s dolls to rivet cassettes). It has been a hectic year, indeed, for IP and advertising attorneys.
But in addition to my normal activities as a lawyer (as though that were not enough!), I have spent my spare time over the past several years writing a novel. All lawyers, as you may be aware, are required at some point in their career to write a novel. Or at least threaten to write one. To the relief of my family, mine is done (it is called The Secret Root, and trust me, you’ll be hearing all about it later on….)
But in any event, in the course of writing this novel I have been forced to act like a futurist, imagining what the world would be like 25 years from now, and then 25 years after that. How would our interactions be sculpted by social media in the years to come. Would Facebook (now with a $100 billion valuation) still be a player 25 years from now? What about Google, or Twitter or any number of other significant brands that shape our world today? How would we live our lives?
Recent books have tried to tackle this subject with a variety of different conclusions. The acclaimed Super Sad True Love Story imagines a media saturated world where the lowest common denominator renders us helpless, pathetic wretches in thrall to pointless and worthless technology. Neal Stephenson’s bestseller REAMDEsuggests that the videogames of today will morph into the new economy of tomorrow — that world-building for fun and world-building for profit are largely the same, and that as our ability to interact with electronic worlds improves we will begin to substitute our “real” life for a simulation. Other works imagine transhumanism, dystopia and crime.
But while speculation is fun, it is also important. The rules we set today will inevitably shape the technologies we get 20 years from now, and the attitudes we adopt will direct our actions. It really will matter whether Protect IP and/or the Stop Online Piracy Act are passed into law — whether you support them or not. It really will matter whether cybercrimecontinues to be a focus of law enforcement. Will geolocation and couponing and rebates and environmental marketing all merge into some amorphous repository of your personally identifiable information?
Actually, my suspicion is exactly that — as advertising becomes more sophisticated, and consumer marketing is fed more data, more and more things will be free in exchange for data about you. More and more marketing practices will be focused on customization and personalization, and more of that will be tied to your online persona. While we have a few years before you live your life as an avatar, you only need look at how 12 year-0lds communicate today to realize that in-person interaction is diminishing rapidly as an attractive choice for the next generation. As massive as Facebook may be today, the potential for synthetic currencies (the logical end-point for Facebook Credits and Linden Dollars, and other “payment systems” that are simply stalking horses for “real money”) and synthetic identities bodes well for the future of social media — even if it will also make it a far more slippery place.
When I look back at where technology was in the early 1990s, and how far it has come in the two short decades that have intervened, I cannot help but think that we are grossly underestimating how much we have changed, and how much we will change once again. Like the hipster narrator of an LCD Soundsystem song, we were there when things began to change, but we will soon be left behind by “the kids” and things that we cannot even imagine today.