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 businessSnow 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 MagazineSIlk 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
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 NeuromancerAngelmaker. 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
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.
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.
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 cybercrime
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