Jan 012009

In early December I attended the “Program for the Future,” celebrating the 40th anniversary of a seminal event in technological history: Doug Engelbart’smother of all demos.” While today the technologies he showed off in his 1968 presentation must seem ordinary and quaint, back then they were revolutionary and laid the foundation for what we now take for granted.

While perhaps most widely known for being the world debut of the mouse, which he invented, Engelbart’s presentation is most notable for how it advanced collective intelligence. What made the presentation so important weren’t the technologies themselves but the human problems they stood to solve.

So in celebration of Engelbart’s important contribution to the world, a group of futurists and technologists gathered together at The Tech museum in San Jose to contemplate the future innovations yet to come. Personally, for me, the event was a bit nostalgic. Before law school, as a technologist in Silicon Valley, I often attended such events. Sometimes they got a bit silly, as there’d be so much “blue skying” and thinking about what could be done that nothing would actually get done. But these kinds of events were still important and because they fostered an environment where the bolts of inspiration could be seized upon and fanned into exciting innovations.

I still gravitate towards technology-related events, only today they are invariably legally-related. At these events technology is always considered in the context of regulatory frameworks, and the people doing the thinking are always lawyers and policy makers. Whereas at this event I was only one out of maybe a handful attendees who was a lawyer. And therein lies the disconnect.

Mind you, I don’t believe it was a problem that there weren’t more lawyers. On the contrary, I’m not sure there should have been any! Or maybe, yes, there really should have been lots more who could have ably and correctly informed all these innovators why their ideas would be possible. But, sadly, that is not what lawyers do.

I stunned myself with the recognition of this absurdity. While I’d consider myself a generally optimistic person, as we broke out into brainstorming sessions, I kept hearing myself articulating limits. Not because I innately thought there should be any; I was just simply reflecting the legal landscape that would shape their work. And that, there, is where the problem is.

I wasn’t wrong in anything I was saying, but it felt wrong to be saying it. I had a conversation with Mr. Engelbart himself afterwards, where I was telling him about how I went to law school in order to confront these legal realities so damaging to innovation. And I suddenly felt like if I didn’t shut up, I was going to make him cry. Here was a man whose career has been about what can be done, and I was telling him about what can’t.

At least I see those ceilings and want to shatter them, as do other like-minded lawyers and policy makers as well. But there is too big a disconnect between the worlds of technology and law, and until it’s better bridged it’s going to continue to cause more harm.

A few months earlier I’d gone to another fortieth anniversary event, this one celebrating the Carterfone decision. It’s an important moment in history because it opened up the AT&T network to non-AT&T devices, and in doing so heralded further telephonic innovation. But let’s think about what was being celebrated: not the 40th anniversary of the development of Carterfone itself, but the 40th anniversary of the Carterfone finally becoming allowed.

With the new year it’s a good time to be making future plans: where do we want to be and what do we want to be feting forty years hence? Which will be the better cause for celebration, a world-enhancing technological development, or a ruling that finally makes it legal? Naturally as long as the law is going to stand in the way of innovation, the times when it steps aside will indeed be worthy of lauding. But as long as there are rooms of technologists contemplating what’s possible and rooms of lawyers contemplating what’s not that underlying innovation won’t happen. We must bridge this divide. Not that technologists need to better understand the law, but that lawyers and law makers must better understand technology. We must advocate and enable it, not discourage and limit it. When technologists blue sky the future, it should be our job to make sure the sky’s the limit.

 Posted by at 9:45 am

  One Response to “Law and technology, the disconnect”

  1. Maybe the place where you need to start your deep thinking is by assuming there were no laws and no lawyers. Then where would we be? Anarchy. Survival of the cruelest.
    Next assume, there were no IP laws and no IP lawyers. Then where would every “innovator” be? At the mercy of The Man, the one that ain’t got any mercy, the one that runs the plantation.

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