Brookings: Centers - Center for Technology Innovation

Can Google Fly Its Internet Balloons Wherever It Wants?

John Villasenor — Sun, 16 Jun 2013 00:00:00 -0400

The Internet is abuzz with news of the first public flight tests in New Zealand of Google’s Project Loon, which aims to provide Internet access to underserved areas using a network of high-altitude balloons. As Google explained in a June 14 blog post:

We believe that it might actually be possible to build a ring of balloons, flying around the globe on the stratospheric winds, that provides Internet access to the earth below. It’s very early days, but we’ve built a system that uses balloons, carried by the wind at altitudes twice as high as commercial planes, to beam Internet access to the ground at speeds similar to today’s 3G networks or faster. As a result, we hope balloons could become an option for connecting rural, remote, and underserved areas, and for helping with communications after natural disasters. The idea may sound a bit crazy—and that’s part of the reason we’re calling it Project Loon—but there’s solid science behind it.

Whether Project Loon’s vision makes technical sense is a worthy question. But even if it passes technical muster, the prospect of using globe-circling high-altitude balloons as communications platforms raises complex legal issues regarding airspace access and control.

It’s the distance, and not the altitude, that creates the primary concerns. Thousands of high-altitude weather balloons are launched without incident every week. However, (with some notable exceptions) weather balloons usually stay aloft for only a few hours and remain within the airspace of a single country during their flight.

By contrast, flying a balloon around the world is hard—and not just because of the engineering difficulties involved. The biggest challenge can often be finding a route that steers clear of countries unwilling to grant overflight permission. Back in the 1990s, attempts at around-the-world manned balloon flights generated complex diplomatic dances and were even thwarted completely by airspace permission concerns. Obtaining approval from China proved critical in enabling the first successful nonstop balloon circumnavigation in 1999 by Bertrand Piccard and Brian Jones. Steve Fossett’s successful 2002 solo balloon circumnavigation took place deep in the southern hemisphere, where much of the route is over water.

Google says that the Project Loon balloons can be “steered by rising or descending to an altitude with winds moving in the desired direction.” To a certain extent, that’s true. But when the only thing you can control is altitude, steering options can be pretty limited. Unless you’re willing to ditch or to limit flights to latitudes well south of the equator, sooner or later some of the balloons will end up in the airspace of countries that don’t welcome their presence. And, while Silicon Valley’s ask-forgiveness-not-permission culture might pay off in many contexts, international aviation won’t be one of them.

So what does that mean for Google’s vision to ring the globe with Internet access points drifting in the stratosphere? A Google spokesperson said the company is “hoping that the launch can start the conversation and begin to spec out how this might work on a larger scale.” Google coordinated with local air traffic control in last week’s New Zealand tests, and is “looking forward to see where this can go.” The next phase of the project will reportedly involve hundreds of balloons flying at a latitude of approximately 40 degrees south, which would take them over a lot of open ocean but also include transits over New Zealand, southern Argentina, and southern Chile.

And then what? In a “Facts and Figures” post about Project Loon, Google notes that “approximately two thirds of the world’s population today doesn’t have Internet access.” However, reaching more than a small fraction of this underserved population using Project Loon would require expanding coverage to more tropical and northern latitudes. That, in turn, would require using the airspace of countries that are certainly not going to permit regular overflights of communications balloons operated by an American company. In other words, regardless of the potential technical merits, a truly global system of Google-operated Internet access balloons isn’t happening anytime soon.

But that doesn’t mean the underlying idea of using high-altitude balloons as communications platforms is flawed. For applications such as disaster relief, it’s a well-recognized and potentially highly effective approach that companies like Space Data Corporation have been honing for many years [PDF]. To the extent that Project Loon can help improve the state of the art in rapid communications system deployment, it’s a worthy effort.

Authors

John Villasenor

Publication: Forbes

Image Source: © Anthony Phelps / Reuters

Accelerating the Mobile Technology Revolution

Wed, 12 Jun 2013 10:00:00 -0400

Event Information

June 12, 2013
10:00 AM - 11:15 AM EDT

Falk Auditorum
The Brookings Institution
1775 Massachusetts Avenue, NW
Washington, DC 20036

A conversation with AT&T Chairman and CEO Randall Stephenson and Senator Mark Pryor (D-Ark.)

In 2013, the number of active smartphones worldwide leapt to more than 1 billion. Given mobile’s immense growth and popularity as a modern-day necessity, how should policymakers respond to the accelerating speed of the mobile revolution, particularly increasing demand for broadband spectrum? How can the public and private sectors stimulate further innovations and investment in mobile technology? What policy steps must be taken to further public and private investment and advances in mobile technology in the United States?

On June 12, the Center for Technology Innovation at Brookings hosted a discussion focused on the mobile revolution and the policy issues that must be addressed to ensure that mobile innovation continues to thrive. Moderated by Director Darrell West, Randall Stephenson, chairman and CEO of AT&T, and Senator Mark Pryor (D-Ark.) shared their thoughts on the future of mobile technology and how government and private enterprise can best work together.

Join the conversation on Twitter using #TechCTI

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Accelerating the Mobile Technology Revolution

Rethinking Responsibility in Innovation

Thu, 30 May 2013 10:00:00 -0400

Event Information

May 30, 2013
10:00 AM - 11:30 AM EDT

Saul/Zilkha Rooms
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

While emerging technologies—like nanotechnology, synthetic biology and advanced manufacturing—bear the promise of great benefits to society, they also pose significant risks. New sciences and technologies substantially affect society and yet it is nearly impossible to anticipate every major consequence of their advancement, development and commercialization. Who is responsible for those consequences? How is responsibility distributed among the various actors who influence and regulate innovation such as private enterprises, the government, inventors and the general public?

On May 30, the Center for Technology Innovation at Brookings hosted a public forum to discuss the role of social responsibility in each stage of the innovation process. A panel of experts discussed the kinds of institutions and incentives that govern innovation and how they shape the behavior of researchers, high-tech firms, capital investment firms, and regulatory agencies.

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Rethinking Responsibility in Innovation

Eyes in the Sky: The Domestic Use of Unmanned Aerial Systems

John Villasenor — Fri, 17 May 2013 09:56:00 -0400

Editor's Note: On May 17, John Villasenor testified before the House Judiciary Committee on the important topic of privacy and unmanned aircraft systems, often referred to as drones.

Good morning Chairman Sensenbrenner, Ranking Member Scott, and Members of the Subcommittee. Thank you very much for the opportunity to testify today on the important topic of privacy and unmanned aircraft systems (UAS).^{^[1]}

I am a nonresident senior fellow in Governance Studies and the Center for Technology Innovation at the Brookings Institution. I am also a professor at UCLA, where I hold appointments in the Electrical Engineering Department and the Department of Public Policy. The views I am expressing here are my own, and do not necessarily represent those of the Brookings Institution or the University of California. Portions of my testimony today are adapted from a law review article I recently published in the Harvard Journal of Law and Public Policy.^{^[2]}

UAS, often referred to as “drones,” can be employed in an endless variety of civilian applications, the overwhelming majority of them beneficial. However, like any technology, UAS can also be misused. The most common concern regarding domestic UAS relates to their potential impact on privacy. This is a legitimate concern. Existing laws and jurisprudence provide an important foundation, but they also leave many questions unanswered.

For non-government operators, determining when UAS use violates privacy involves the tension between First Amendment freedoms and common law and statutory privacy protections. With respect to government-operated UAS, the Fourth Amendment is of course central to the privacy question. While the Supreme Court has never explicitly considered warrantless observations using UAS, a careful examination of Supreme Court privacy jurisprudence suggests that the Constitution will provide a much stronger measure of protection against government UAS privacy abuses than is widely appreciated. The Fourth Amendment has served us well since its ratification in 1791, and there is no reason to suspect it will be unable to do so in a world where unmanned aircraft are widely used.

This does not mean that there is no need for additional statutory UAS privacy protections. However, when drafting new laws it is critical to adopt a balanced approach that recognizes the inherent difficulty of predicting the future of any rapidly changing technology. Although unmanned aircraft pose real and increasingly well-recognized privacy concerns, they also offer real and much less widely understood benefits. A dialog conducted with full awareness of this balance will be much more likely to lead to positive policy outcomes.

[1] The acronym “UAS” is also sometimes expanded to “unmanned aerial systems.”

[2] John Villasenor, Observations From Above: Unmanned Aircraft Systems and Privacy, 36 Harv. J.L. & Pub. Pol'y 457 (2013).

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John Villasenor

Image Source: © Handout . / Reuters

Mobile Technology’s Role in Combating Global Poverty and Enabling Entrepreneurship

Thu, 16 May 2013 14:00:00 -0400

Event Information

May 16, 2013
2:00 PM - 3:30 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue, N.W.
Washington, DC 20036

According to the World Bank, nearly one-quarter of the global population lives at or below the poverty line of $1.25 per day. The world’s poor experience barriers to lifting themselves out of poverty because of the lack of access to capital to start small businesses and build personal savings. Yet with the growth of mobile technology, there are now new avenues for individuals to improve their economic circumstances, make monetary transfers, arrange for microfinance loans or establish small enterprises.

On May 16, as part of the Mobile Economy Project, the Center for Technology Innovation at Brookings hosted a forum to investigate the barriers to using mobile devices to conduct business in the developing world, explored how mobile devices enable individual entrepreneurship and small business development and examined mobile technology’s role in alleviating global poverty.

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Mobile Technology’s Role in Combating Global Poverty and Enabling Entrepreneurship

Alleviating Poverty: Mobile Communications, Microfinance and Small Business Development Around the World

Darrell M. West — Thu, 16 May 2013 12:00:00 -0400

Editor’s Note: The Center for Technology Innovation at Brookings releases this paper in conjunction with the May 16 forum at Brookings, “Mobile Technology’s Role in Combating Global Poverty and Enabling Entrepreneurship.” Both are part of the wider Mobile Economy Project which examines how the rapid expansion of mobile technology around the world is transforming economic opportunity for millions.

Poverty is one of the most pressing problems around the world. According to statistics from the World Bank, nearly one-quarter of the global population lives at or below the poverty line of $1.25 per day.[i] With so many people struggling for basic subsistence, it is hard for those affected to get out of poverty, gain access to capital, or develop small firms or businesses that help them build a better life.

Yet with the growth of mobile technology, there are new opportunities for individuals and small businesses to lift themselves up. People can use handheld devices to make monetary transfers, arrange for microfinance loans, establish small enterprises, and improve their economic circumstances. This helps them alleviate poverty and create a better situation for themselves and their families.

Jeffrey Sachs, director of Columbia University's Earth Institute, said that wireless communication is a breakthrough technology that helps to solve the worst problems associated with health care, poverty, and educational access. "Now in every village where I go, someone's got a cell phone, somebody can make an emergency call, someone can find out the price on the market, someone can start a business empowered by the fact that they can reach a customer or a supplier, someone can drive a taxi or a truck for that reason as well. Everything is changing," said Sachs.[ii]

In this Mobile Economy Project report, Darrell West looks at the growth of handheld devices and investigates the barriers to doing business in the developing world. In particular, West explores how mobile devices enable individual entrepreneurship and small business development. Despite the presence of barriers such as corruption, lack of transparency and capital, and poor infrastructure in many parts of the developing world, there are successful ventures enabled by mobile technology.

The report details some of the cases which illustrate emerging possibilities for alleviating poverty in different countries including:

The growth of mobile devices
Mobile money transfer services
Mobile tools for small businesses
Microfinance applications

[i] World Bank data is found at http://povertydata.worldbank.org/poverty/home/.

[ii] Kyla Yeoman, “Can Mobile Phones End Extreme Poverty?”, Global Envision, March 16, 2012.

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Darrell M. West

Image Source: © Mike Hutchings / Reuters

Five Ways Teachers Can Use Technology to Help Students

Darrell M. West and Joshua Bleiberg — Tue, 07 May 2013 08:59:00 -0400

Thomas Edison once said, "Books will soon be obsolete in the public schools...our school system will be completely changed inside of ten years." Amazingly enough, however, one of our nation's most important inventors was proven quite wrong. The American education system has a remarkable resistance to innovation and the classroom experience has changed very little in the 100 years since Edison's prediction.

Advances in information technology have revolutionized how people communicate and learn in nearly every aspect of modern life except for education. The education system operates under the antiquated needs of an agrarian and industrial America. The short school day and the break in the summer were meant to allow children to work on family farms. Schools have an enduring industrial mentality placing students in arbitrary groups based on their age regardless of their competencies.

Technology has failed to transform our schools because the education governance system insulates them from the disruptions that technology creates in other organizations. The government regulates schools perhaps more than any other organization. Rules govern where students study, how they will learn, and who will teach them. Education regulation governs the relationships of actors in the system and stymies the impact of innovative technologies. Furthermore the diffuse system of governance creates numerous veto points to limit innovation.

To overcome these obstacles, we must persuade teachers that technology will empower them and help their students learn. We argue that there are five strategies for successful teacher adoption of education technology and that these principles will help fulfill the potential that Edison saw a century ago:

Schools must use technology that empowers teachers. Teachers rightly reject education technologies that divert their attention from instruction. The best education technologies enable teachers to do more with fewer resources. Communication platforms like Twitter, Facebook, or Tumblr enable dynamic communication with students. Teacher-empowering technologies include mobile apps that grade written student work and provide lesson plan databases. School systems need to aggressively track what works for their teachers and put all other unworkable technologies aside.

Teachers should treat the adoption of technology as part of lesson planning. One of the major drivers of bad policy is policy churn. New district leaders want to make their mark adopting new policies and jettisoning the old. This constant changing of priorities makes beneficial reforms difficult to implement. Teachers can incorporate technology directly into their practice and insulate their students from the deleterious effects of policy churn. For example teachers can use Khan Academy or other online resources to improve remediation. Systematic adoption of technology at the classroom levels limits the damage of shifting policy maker priorities.

Teachers should not fear open-source technologies. Many mistakenly believe that education technologies are expensive and complicated to use. Open-source technologies are stable, secure, and compatible with other platforms. Organizations both small and large use open source devices every day. Many businesses use open-source servers for their efficiency and costs savings. They often have large communities that provide high quality customer support. Best of all, open-source technologies often cost less than proprietary products.

Use online education portfolios to evaluate students. Educators have known about the benefits of paper based portfolios for generations. Portfolios allow students to express creativity for difficult to assess subjects. Teachers can choose from a variety of online portfolio providers tailored to the needs of their classroom. They also serve as a platform for students to demonstrate growth. Online portfolios have many advantages over paper based options because they cost less and allow for more robust outreach. Online portfolios are also amenable to a wider variety of formats including video, music or other interactive features.

Teachers should embrace the Common Core State Standards. Common standards make teaching simpler. Teachers have to write lessons that comply with district, state, and national standards (e.g. NCTM or NCTE). Having a single set of standards eliminates redundancy and conflicting guidelines. Furthermore universal adoption of common standards will support future technological innovations that aid teachers. From a technical perspective, standards facilitate the development of new technologies. Innovators can focus on developing tools that better serve students rather than solving technical challenges of interoperability created by multiple sets of standards.

Undoubtedly weak financial support inhibits the adoption of education technology. Despite this obstacle, teachers working together have tremendous potential to reform education. Every day teachers face choices about how to implement the curriculum and instruct students. Those moments are opportunities for teachers to engage in education reform that has a real impact on students. Teachers should use education technologies that are inexpensive, easy to use, and improve student learning.

Authors

Darrell M. West
Joshua Bleiberg

Publication: The Huffington Post

Image Source: © Thomas Peter / Reuters

The 'First Sale Doctrine' and Its Impact on the Music Business

John Villasenor — Fri, 03 May 2013 11:16:00 -0400

On March 19, the Supreme Court issued its decision in Kirtsaeng v. John Wiley & Sons, a landmark copyright case examining the reach of the “first sale” doctrine. Under that doctrine, the owner of a copy of a work that was “lawfully made” in accordance with U.S. copyright law “is entitled, without the authority of the copyright owner, to sell or otherwise dispose” of it. For instance, if you purchase a lawfully produced music CD or movie DVD in the United States, you are free to later sell it at a garage sale, donate it to a library or loan it to a friend.

But what about goods made and sold overseas and then imported for resale? After all, there is another provision of copyright law that prohibits the importation into the United States, without the authority of the copyright owner, of copies of a work “acquired outside the United States.”

These two potentially contradictory features of copyright law were tested by Supap Kirtsaeng, who built a business around importing textbooks that had been lawfully made and sold overseas and then reselling them at a profit in the United States. After publisher John Wiley & Sons filed suit against Kirtsaeng in 2008, a federal district court found that his actions infringed Wiley’s copyrights, and the Second Circuit affirmed. However, the Supreme Court reversed these decisions on March 19, holding that the first sale doctrine “applies to copies of a copyrighted work lawfully made abroad.” The ruling will make it very difficult for sellers of physical goods like music CDs to price the same products differently in different markets.

So what will this mean for music sales? In an amicus brief filed in the case, the RIAA and Motion Picture Assn. of America warned against exactly the decision the Supreme Court has now made, stating it “would undermine the copyright protection on which artistic fields like the motion picture and music industries depend for their economic viability” and “have deleterious consequences for the U.S. economy as a whole.”

The Supreme Court’s Kirtsaeng decision undeniably weakens the power of copyright holders. But it’s a bit of a stretch to suggest that the entire U.S. economy might suffer significant harm as a result. In fact, the negative impact on music copyright holders will likely be far more modest than some people expect. Why? Because the first sale doctrine applies to sales. By contrast, music download and cloud-based access services can be delivered using licenses that allow copyright holders to retain a much higher level of control over use of the work.

Not all licenses, however, are equivalent. For example, ReDigi has built an online digital music marketplace based in part on its belief that the iTunes terms of sale, in contrast with the terms of use for Amazon’s online music store, provide for a transfer of title that allows iTunes customers to resell their songs. Whether that interpretation carries the day will depend on the outcome of an ongoing lawsuit filed against ReDigi by Capitol Records in a New York federal district court.

More generally, it is certainly possible -- and very common -- to design licenses in which customers do not become owners of a copy of a song. Under such licenses, music copyright holders can and routinely do impose restrictions on resale and geographic portability. Whether these sorts of restrictions are well matched to the ways in which people and information move in today’s world is a debate for another day. But as profoundly important as Kirtsaeng is for copyright in the broader sense, it may have little impact on a music ecosystem increasingly built around licensing-based approaches for distributing “purchased” content.

Authors

John Villasenor

Publication: Billboard

Image Source: © Siphiwe Sibeko / Reuters

No-Fly Zone: How “Drone” Safety Rules can also Help Protect Privacy

John Villasenor — Thu, 02 May 2013 15:54:00 -0400

Editor’s Note: This article on how drone safety rules can also help protect privacy arises from Future Tense, a partnership of Slate, the New America Foundation, and Arizona State University.

For most of the 20^th century, obtaining overhead images was difficult and expensive. Now, thanks to advances in unmanned aircraft systems—people in the aviation field tend to dislike the word drone—it has become easy and inexpensive, raising new and important privacy issues [PDF]. These issues need to be addressed primarily through legal frameworks: The Constitution, existing and new federal and state laws, and legal precedents regarding invasion of privacy will all play key roles in determining the bounds of acceptable information-gathering from UAS. But safety regulations will have an important and less widely appreciated secondary privacy role.

Why? Because safety regulations, which aim to ensure that aircraft do not pose a danger in the airspace or to people and property on the ground, obviously place restrictions on where and in what manner aircraft can be operated. Those same restrictions can also affect privacy from overhead observations from both government and nongovernment UAS. FAA regulations make it unlawful, for example, to operate any aircraft (whether manned or unmanned) “in a careless or reckless manner so as to endanger the life or property of another.” Aircraft must also be operated at a sufficiently high altitude to allow “an emergency landing without undue hazard to persons or property on the surface” in the event of an engine failure. Flying a UAS around someone else’s backyard can be a bad idea for lots of reasons, including the possibility of violating these rules.

UAS safety (and other) regulations are in the midst of an overhaul. Last year, President Obama signed an FAA reauthorization bill that provides for the integration of UAS into the national airspace by late 2015. Under this new law [PDF; see Sections 331–336], since May 2012 law enforcement agencies have been able to apply for expedited authorizations to use certain types of small UAS, which must be operated during daylight, less than 400 feet above the ground, and within “line of sight” of the operator. This means that the operator can see a UAS with his or her own eyes as it is being flown. (The phrase “visual line of sight” is sometimes distinguished from “line of sight,” which can refer to operation in which a radio signal can be transmitted directly from an operator to a UAS that may be beyond visual line of sight. However, in the 2012 FAA reauthorization bill, “line of sight” is almost certainly intended to mean “visual line of sight.”)

Visual line of sight operation is also required under a definition [PDF; see Section 336] provided for “model aircraft” in the 2012 law. However, that definition is specific to that section of the law and may not apply to all hobbyist unmanned aircraft. The FAA’s Advisory Circular [PDF] on “model aircraft operating standards” does not mention line of sight, though model aircraft operation beyond the line of sight would risk being viewed by the FAA as careless or reckless. The FAA is also very likely to require visual line of sight operation in new rules for most (but not all [PDF]) commercial, research, and other uses of UAS.

From the FAA’s standpoint, line-of-sight rules are aimed solely at ensuring safety, since an operator who can’t see the aircraft he or she is flying can find it harder to “see and avoid” other aircraft in the vicinity. But line-of-sight operation also provides some measure of privacy protection by excluding some of the most egregious potential abuses. It is very hard for an operator in front of a house to maintain visual line of sight while lowering an unmanned aircraft into the fenced‐in backyard to obtain eye‐level images through the back windows of the house.

While there is nothing physically preventing an unmanned aircraft from being flown in violation of these and other FAA rules, the potential consequences of doing so can provide a strong set of disincentives. An individual, company, or other organization that runs afoul of FAA rules could face fines or other legal consequences and find its authorization to operate unmanned aircraft suspended or revoked. That may not stop the most determined paparazzi from snapping overhead pictures of sunbathing movie stars, but it should help dissuade many would-be UAS voyeurs.

And what would happen if a law enforcement agency violated FAA rules while using a UAS to get images of a suspect’s backyard? Would acquiring those images be a Fourth Amendment “search,” and therefore be unconstitutional without a warrant?

While the Supreme Court has never specifically ruled on UAS privacy, it considered warrantless observations from manned government aircraft on three occasions in the 1980s. In the 1986 California v. Ciraolo decision, for instance, the court ruled that police observations from an airplane flying at 1,000 feet of marijuana growing in a backyard were constitutional. Noting that the “observations … took place within public navigable airspace … in a physically nonintrusive manner,” the court held that the “Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye.” In two other decisions involving observations of private property from aircraft—Dow Chemical Co. v. United States in 1986 and Florida v. Riley in 1989—the justices also viewed the fact that the aircraft were lawfully operated as a factor, although far from the only one, in finding no Fourth Amendment violation. In light of these precedents, a court might well find gathering images from government aircraft operated in violation of FAA regulations to be unconstitutional.

It’s still far too early to know exactly how FAA rules designed to provide safety and efficiency will affect unmanned aircraft privacy. Commercial UAS operation in the United States is not yet permitted, and the number of law enforcement organizations that have received FAA authorizations for operational (as opposed to training) UAS use is still very limited. And while there is a large and growing community of “drone” hobbyists, the overwhelming majority of them fly safely and in a manner respecting privacy.

However, as unmanned aircraft use increases there will inevitably be instances in which UAS are operated by private individuals, paparazzi, companies, and law enforcement agencies in ways that raise privacy concerns. Determining whether those uses violate reasonable expectations of privacy will sometimes start—though certainly not end—with an inquiry into whether the UAS was operated in compliance with FAA regulations.

Authors

John Villasenor

Publication: Slate

Image Source: © Jean-Paul Pelissier / Reuters

Six "Megatrends" That Will Shape the Future of Digital Media

John Villasenor — Wed, 01 May 2013 16:47:00 -0400

Editor’s Note: John Villasenor’s piece on the six "megatrends" that will shape the future of digital media was first published in Forbes. Villasenor is a nonresident senior fellow in Governance Studies’ Center for Technology Innovation at Brookings and is a member of the World Economic Forum’s global agenda council on the intellectual property system.

The World Economic Forum is perhaps best known for its annual meeting in Davos, Switzerland, which brings together heads of state, CEOs of some of the world’s largest companies, and assorted other movers and shakers for a week of speeches, panels, and workshops in the Swiss Alps each January. But the Forum also works year-round through its network of over eighty global agenda councils, which address a diverse range of topics including biotechnology, climate change, energy security, and youth unemployment.

Since last year, I’ve been a member of the Forum’s global agenda council on the intellectual property system. We’ve taken a careful look at the forces shaping how people are creating and sharing digital media today, and perhaps even more importantly, what the world of digital media will look like in the coming years. We’ve distilled these down to a set of six digital content “megatrends” that, translated from policy-wonk language into English, are as follows (the unsimplified version is here [PDF]):

Content distribution models are shifting towards instantaneous, ubiquitous access, often using social networks
New technologies, big data, and the growth of virtual content are reshaping the creative economy landscape
The traditional lines between content creators and content consumers are blurring, with consumers playing an increasingly important role in collaborative content creation
Business models for digital content distribution are changing, with licensing and service-based delivery models replacing traditional sales-based distribution
Commerce in creative works is increasingly global – but national and regional intellectual property frameworks have yet not caught up with the full range of cross-border content movement enabled by today’s technologies
Technology is making it easier to modify and redistribute content. The resulting complex chains of “derivative works” provide increased opportunities to capture creativity, but also create challenges to managing copyright.

Many aspects of these trends are obvious. It’s not news to anyone that technology has altered how we create and distribute content, that business models for media distribution have evolved dramatically over the last decade, or that intellectual property laws need to be updated. But articulating the key trends impacting digital media can provide a useful framework for rethinking intellectual property, both at the level of individual companies as well on a national and global scale.

For example, if your business uses crowdsourcing to capture the collective creative input of a large customer base (or for content distributors, a large audience), there are important questions that can arise regarding ownership of the associated intellectual property – questions that don’t always end with the terms of use that your customers accept as a condition of joining your ecosystem. If your company is contemplating a business model that includes cross-border distribution of certain types of digital media, you will likely encounter a complex licensing landscape that can make it difficult to maximize your market reach.

Addressing the many challenges of doing business in a global digital media environment requires not only working effectively within existing intellectual property frameworks, but also helping policymakers identify ways in which those frameworks can be suitably updated. The trends listed above can provide context for conversations serving both of those ends. The result can be a set of intellectual property solutions allowing content creators to reach larger and more engaged audiences, consumers to benefit from increased choice, and the businesses that connect them to broaden the scope of their products and services.

Authors

John Villasenor

Publication: Forbes

Becoming a Techno-Industrial Power: Chinese Science and Technology Policy

Joel R. Campbell — Mon, 29 Apr 2013 09:05:00 -0400

Editor's Note: This paper by Joel R. Campbell, which outlines the history of Chinese science and technology innovation since the founding of the People's Republic, is the April 2013 installment in the Issues in Technology Innovation paper series, which is part of the Center for Technology Innovation in Governance Studies at Brookings.

China’s science and technology policy has developed through four phases since the founding of the People’s Republic in 1949. In the first phase, to 1959, technology supported the creation of heavy industry along Soviet lines, while the second, up through the end of the Cultural Revolution in 1976, saw economic stagnation and ideological domination of technology projects. A third phase, under reforms launched by Deng Xiaoping and carried forward by Jiang Zemin to 2001, stressed building of an independent research base and the gradual shift to market-oriented, product-driven research. Since 2002, Chinese policy has increasingly backed high technology industrialization, along with support for the nascent green technology industry.

Chinese technology policymakers also have promoted an innovation-driven economy. The Ministry of Science and Technology (MOST) is the key policymaking and policy coordination organ, and it funds the five most important technology development projects:

The Key Technologies Research and Development Program, focused on industrial technology
The 863 Program, centered on basic and applied research on marketable technologies
The Torch Program, which supports commercialization of high tech products
The 973 Program, funding multi-disciplinary projects in “cutting edge” technology, and
The Spark Program, promoting development and use of technology in rural areas

Science and industrial parks are key venues for high tech research and development (R&D). Currently, there are fifty-four such parks, mostly located in large cities or provincial capitals. Firms operating in the parks must create or apply technology in high tech fields, devote at least three percent of gross revenues to R&D, and employ at least thirty percent of college degreed workers. The information technology (IT) industry is one of the leading industries in the science parks, and has received special policy recognition since 2000.

The space program has become one of China’s proudest recent accomplishments. Building steadily on its experience with military and civilian missile technology, China has already launched four manned space missions, and has ambitious plans for a space station and unmanned exploration of the Moon, along with possible manned lunar missions. China has also made a major push into green (or “clean”) technology, driven by twin concerns about dependence on foreign oil and serious environmental degradation within China.

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Authors

Joel R. Campbell

Image Source: © Jason Lee / Reuters

Tech Transfer Policy: Bayh-Dole has Distributional Consequences

Walter D. Valdivia — Fri, 26 Apr 2013 08:59:00 -0400

Editor’s Note: This article first appeared in Innovation: America’s Journal of Technology Commercialization (April/May 2013; Volume 11, Number 2).

The sequester will have a negative effect on federal R&D of $9.6 billion, that is about a 7 percent cut with respect to the 2012 budget. These cuts will renew the urgency of figuring out how to maximize the social return on public R&D investments. That is a complex question because social returns are not only a function of the pace of innovation but also depend on how the benefits of innovation are distributed across society. Federal agencies that fund research as well as universities and national laboratories have an important role to play here. Not only can they rebalance their research portfolios but also they can improve technology transfer—the dynamic exchange of knowledge between research organizations and the private sector.

One important channel for technology transfer is patenting and the licensing of those patents to industry. These activities are primarily regulated by the Bayh-Dole Act of 1980. Think privatization of public assets where the assets are public patents—patents derived from federally funded research. The act introduced in this way the profit incentive to develop commercial products from public research. Under this act, the research contractor (generally a university or national laboratory) can take title to patents and to subsequently license those patents to private companies or other agents with the only proviso that the licensee takes reasonable efforts to practice the patent, that is, to develop it into a practical application.

The ostensible goal of Bayh-Dole was precisely to maximize the social benefit of federal R&D investments. We must then ask if this policy has delivered and if taxpayers are receiving a social return commensurate to their investment in research. The answer is inconclusive. There is some evidence that the translation of federally funded research into market products has increased but Bayh-Dole has also had unanticipated consequences—patenting has moved upstream to research tools creating what legal scholars Michael Heller and Rebecca Eisenberg have characterized as the tragedy of anticommons. In addition, it is not at all clear how widely the benefits of public patents have been distributed. Therefore, a fair assessment of Bayh-Dole must address at least two questions: Are the unanticipated consequences undercutting efficiency gains? And, are social returns from innovation concentrated or broadly distributed?

Regarding efficiency, a concern of the first order is that universities are patenting research tools. Scientific research is a collective effort that requires an active intellectual exchange at the outer boundaries of knowledge. Among the goods traded there are research tools, materials, and data. The patenting of reagents, cell lines, chemical compounds, raw datasets and other materials and the strict enforcement of those patents poses the risk of slowing down innovation at the headspring. A sensible answer to this problem would be to modify the statute to allow an exemption for non-profit research institutions. The exemption must at least apply to public patents. Universities and laboratories wanting to negotiate exclusive licenses on research tools would then be required to demonstrate that such an arrangement is in the interest of science and the public good. Complementing this solution, federal research contractors could benefit greatly from organizing a system-wide consortium for sharing research tools. This patent pool, chartered as a not-for-profit organization, would guarantee access to its patents (or at least patents on research tools) to all its members at fair licenses fees.

Beyond efficiency, there is an equity concern. That a public patent is developed into a product doesn’t directly imply maximum social benefit. If a new product is priced so high that only very few people can afford it, the social return will be minimal. Consider the effect of innovation in the pricing of drugs. If pharmaceutical companies are allowed to charge as high prices as they wish, only patients with prescription drug coverage in their health insurance will afford new medicine. If health insurance is universal, the effect will be deleterious for society because insurance prices will have to keep pace with drugs prices. A good indicator of the social return on public investment in biomedical research is therefore affordability. Amidst budget cuts and inflationary pressure on prescription drugs, policymakers are taking this issue seriously; for instance, Senator Ron Wyden (D-OR) has recently asked the NIH to “revisit the idea of striking a better balance between encouraging profit, innovation, accessibility and affordability.”

If public patents are a steady source of innovation in the biomedical sector, pricing excesses should be disallowed or at least regulated. Let’s be clear that companies that take a public patent and commit significant resources to its development are justly entitled to recoup their investments and even to retain a profit margin. But they did not incur in the full back-to-back investment—they did not invest in the expensive portfolio of blue-sky research out of which one program resulted in the patent they have come to license—it was the taxpayer that incurred in that high-risk investment. Put shortly, companies cannot assume a right to maximum profit when selling products based on public patents.

Federal agencies should be empowered, under Bayh-Dole, to promote competitive markets in high-tech sectors. One area where this can be done is defining better the conditions for exclusive licenses. While exclusive licenses are well justified in the case of start-up companies—they use these intangible assets to raise investment capital—the same rationale does not hold for large companies with high liquidity or easy access to credit. This kind of safeguard was part of the original intent of the act; Bayh-Dole originally limited to five years exclusive licenses for large companies. Another safeguard is the march-in rights provision. Federal agencies retain a royalty free license to all public patents and they can practice their licenses if the private sector shows no active effort to develop the patents or to satisfy public health and safety needs. Executive action should allow federal agencies to apply this provision to curb pricing excesses, for instance by linking need to affordability. The sole threat of intervention would curb pricing while still allowing companies to make some profit.

Congress and the federal government can help universities and national laboratories maximize the social returns of research by encouraging licensing practices that ease scientific collaboration and by curbing pricing excesses.

Authors

Walter D. Valdivia

Publication: Innovation

Google Glass, Resale Restrictions, and the Demise of Ownership

John Villasenor — Fri, 26 Apr 2013 12:02:00 -0400

Editor’s Note: In this article, first published by Slate, John Villasenor writes about Google Glass and how restrictions on its resale affect consumers and the privileges of ownership. It arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture.

Late last month, Google selected 8,000 people to be given the privilege of forking over $1,500 to purchase a pair of Glass, the Internet-connected glasses that promise to bring wearable computing to a whole new level.

But ownership isn’t what it used to be. According to the Google Glass terms of sale,

[W]hen you purchase Glass devices or accessories from Google … [y]ou may not commercially resell any Device, but you may give the Device as a gift, unless otherwise set forth in the Device Specific Addendum. Recipients of gifts may need to open and maintain a Google Wallet account in order to receive support from Google. These Terms will also apply to any gift recipient.

Welcome to the shrinking privileges of ownership in an always-connected world. Are these terms beneficial for consumers? Clearly not. Are they even enforceable? To at least some extent, they probably are.

Prohibiting resales, loans, and other transfers after an initial sale has long been understood to be bad for both markets and consumers. Back in the 1600s, English jurist Lord Coke recognized [PDF, see section 360] the harms to “trade and traffique, and bargaining and contracting” that could result from transfer restrictions placed on owners. In its March 2013 ruling in Kirstaeng v. John Wiley & Sons Inc., the Supreme Court cited Lord Coke and wrote that “American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer.”

In copyright law (which protects original works of authorship), an owner’s freedom to resell, donate, or otherwise dispose of lawfully made printed books, music CDs, movie DVDs, and other physical (but not electronic!) copies of works is known as the “first-sale doctrine.” For patented inventions, the analogous concept is called patent exhaustion. As the Supreme Court explained in a 2008 decision in Quanta Computer Inc. v. LG Electronics Inc., the “longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item.” If you own a lawfully made music CD or a legitimately purchased automobile (which contains many patented components), you are free to resell either one without first seeking the consent of the associated copyright and patent holders.

But that doesn’t mean you are free to resell Google Glass. Why not? Because the first-sale doctrine and patent exhaustion, which reflect federal law limitations on the rights of intellectual property holders, are not the only considerations. Contractual obligations are also important. A purchaser who enters into and then violates an agreement prohibiting resales could be exposed to a breach-of-contract claim. If your purchase of Glass from Google was accompanied by a promise not to commercially resell it, turning around and offering your Glass to the highest bidder on eBay could land you in hot water.

Another complication is that Google Glass, like many recent- and emerging-generation consumer electronics products, is made useful largely through its ability to connect to license-based service offerings. When you use a service such as Google Maps, you do so under a license to access the associated content—you’re a licensee, not an owner of that content.

The model of requiring purchasers of consumer electronics devices to first enter into restrictive contracts as a condition of sale and then to agree to restrictive licenses when using those devices raises multiple concerns. Most fundamentally, it does an end run around legal frameworks that evolved specifically to prohibit anti-competitive and consumer-unfriendly downstream control over transfers of ownership. And it’s confusing for consumers.

t’s tempting to think of the Glass resale restriction as simply another unwelcome consequence of the many legalese-laden agreements that we all encounter when using almost any online service. But most of those agreements involve restrictions on data, not the devices on which they reside. You can’t resell files containing songs downloaded from Amazon, map data from Google, or restaurant recommendations from Zagat. Our purchased devices, by contrast, have generally been ours to keep, sell, loan, or donate as we see fit. That flexibility is lost when a purchase comes with restrictions like those in the Glass terms of sale.

So, what’s the solution? Ideally, device sales shouldn’t come with downstream resale restrictions. People who buy consumer electronics devices ought to be free to enjoy all the traditional privileges of ownership—including the ability to dispose of them on terms of their own choosing. Companies unwilling to provide that flexibility should at least ensure that their customers are clearly informed of the strings attached to “ownership.” In this respect, Google could do better. The Google Glass terms of sale, for example, purport to “apply to any gift recipient” to whom you might give Google Glass. What does that really mean? If you give someone Google Glass, is it your responsibility to ensure that the recipient is duly informed of and agrees to the resale prohibition? If you don’t even raise the issue—or if you do but the would-be-recipient doesn’t agree—can you still give the gift? And if that person sells your gift on eBay, was there a breach of contract, and if so, of what contract?

Consumers, too, can push back against what may be a growing trend to encumber purchases of advanced consumer electronic devices. If consumers display a reluctance to accept overly restrictive device sale terms, market pressure should force companies to adopt terms ensuring that we really own the things we buy.

But if the heated competition for the right to buy Google Glass is any indication, we won’t see that market pressure brought to bear any time soon. That’s unfortunate, because there’s a risk of creating a new normal that leaves consumers with a substantially diminished set of rights regarding their devices. In the mean time, if anyone offers to give you a pair of Glass as a gift, you may want to read the fine print.

Authors

John Villasenor

Publication: Slate

Image Source: © Stephen Lam / Reuters

Is It Illegal to Resell “Used” Digital Music?

John Villasenor — Tue, 23 Apr 2013 15:37:00 -0400

Editor’s Note: This article was first published by Slate. It arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture.

When you purchase a lawfully produced music CD, you are entitled under U.S. copyright law “to sell or otherwise dispose” of it without seeking permission from the copyright holders. Without the protection of this “first-sale” doctrine, simple acts such as donating a used book to a library or selling old music CDs on eBay would constitute copyright infringement. But what happens if you purchase a song through an online store such as iTunes? Does the first sale doctrine protect the right to resell digitally purchased works as well?

According to a March 30 ruling [PDF] from a federal judge in New York, the answer is no. Back in October 2011, a startup company called ReDigi launched an online digital marketplace enabling users to “sell their legally acquired digital music files, and buy used digital music from others at a fraction of the price currently available on iTunes.” ReDigi created a website to facilitate resales, plus a downloadable “Media Manager” designed to ensure that users would not retain copies of songs they had sold.

In January 2012, Capitol Records filed a complaint [PDF] in a New York federal court alleging that “ReDigi is actually a clearinghouse for copyright infringement and a business model built on widespread unauthorized sound recordings owned by” Capitol and others. In this week’s ruling, Judge Richard J. Sullivan agreed. ReDigi’s service, he wrote, “infringes Capitol’s exclusive right of reproduction” as well as its “exclusive right of distribution.” And Judge Sullivan went further, concluding that “the Court cannot of its own accord condone the wholesale application of the first sale defense to the digital sphere, particularly when Congress itself has declined to take that step.”

The ruling doesn’t address a key question implicated in digital resales: When are people who “purchase” a song for download from a retailer owners of a copy of the song, and when are they simply licensees? After all, the first-sale doctrine applies to sales. For music provided using license-based delivery models in which buyers don’t own the downloaded content, there’s a reasonable argument that the first-sale doctrine doesn’t apply.

ReDigi was well aware of this potential hurdle and argued to the court in a brief [PDF] filed last year that the iTunes terms of sale, in contrast with the terms of use for Amazon’s online music store, provide for a transfer of title that allows iTunes customers to subsequently resell their songs. But the court’s March 30 ruling doesn’t address the license/sale distinction. Rather, it focuses on the undisputable technical fact that when a digital song is sold on the secondary market, a copy is created on the purchaser’s computer (or cloud-based locker). That copy, ruled the judge, is an unauthorized reproduction.

The decision quotes from—and is clearly influenced by—a 2001 U.S. Copyright Office report to Congress [PDF] that argued strongly against allowing consumers the right to resell digital works:

“Physical copies of works degrade with time and use, making used copies less desirable than new ones. Digital information does not degrade, and can be reproduced perfectly on a recipient’s computer. The ‘used’ copy is just as desirable as (in fact, is indistinguishable from) a new copy of the same work. Time, space, effort and cost no longer act as barriers to the movement of copies, since digital copies can be transmitted nearly instantaneously anywhere in the world with minimal effort and negligible cost. The need to transport physical copies of works, which acts as a natural brake on the effect of resales on the copyright owner’s market, no longer exists in the realm of digital transmissions.”

All of these statements are true. But isn’t the ability to create copies of works that don’t degrade over time, on balance, a positive development as opposed to something to be feared? Don’t the upsides of technologies that can allow information to be moved instantaneously and at negligible cost outweigh the downsides?

The Copyright Office’s 2001 opposition to a digital first-sale doctrine was grounded in part on the legitimate concern that people might resell copies of digital works while also retaining them. The technology to ensure that the seller’s copy was deleted was deemed “not viable at this time.” However, that is no longer true. As indicated by ReDigi’s service—and by a digital resale patent from Amazon and a patent application from Apple—there are solutions that can help ensure that a single digital sale by a retailer doesn’t turn into multiple digital copies in the secondary market. Are these solutions perfect? Of course not. But do they represent good-faith efforts to harness technology in a way that respects the rights of owners of legitimately purchased content as well as those of copyright holders? Yes, they do.

Copyright holders have every right to expect legal protection from piracy and other improper uses of their intellectual property. But people who make legitimate purchases of digital content have rights as well—rights that are not fully respected under current copyright frameworks.

Of course, if copyright holders provide consent, then digital resales can be legally conducted even without a change in copyright law. In this respect, Apple’s recently published patent application is intriguing, because it describes mechanisms for content creators, publishers, and retailers to share in the proceeds from digital resales. While this raises concerns from a policy standpoint (because it allows double- and triple-dipping on revenues from downstream sales of the same piece of content), it’s a solution that can enable a lawful secondary market in digital works without waiting for Congress to act. We shouldn’t be surprised if Apple is busy negotiating deals with copyright holders that will allow it to introduce a digital resale service in the iTunes store.

If that happens, the “most offered for resale” list could provide an interesting new source of data on artist and song popularity.

Authors

John Villasenor

Publication: Slate

Twelve Ways to Build Trust in the ICT Global Supply Chain

Darrell M. West — Thu, 18 Apr 2013 00:30:00 -0400

Editor's Note: This paper was released in conjunction with the Building Trust in the Global Supply Chain event at Brookings on April 18, 2013. It is a part of the Center for Technology Innovation's Issues in Technology Innovation paper series.

The globalization of commerce and trade has created many benefits. Supply costs have been reduced for many products. Computers and other items can be made of parts from a number of different locales. Countries can specialize in particular goods and companies can focus on the things they do best. Raw materials may come from one area, while manufacturing and production lie elsewhere, and sales and marketing take place in still another place. In this as well as other examples, contemporary commerce involves a complex interchange of hundreds or thousands of individuals, organizations, technologies, and processes across a variety of different continents.

But long supply chains and inadequate or nonexistent product evaluation before deployment, create a situation where widespread vulnerabilities exist in products and networks that can be exploited by others during design, production, delivery, and post-installation servicing. There are industry-wide risks associated with procurement, transportation, and management. Everything from raw materials and natural disasters to market forces, national laws, and political conflict can be problematic. Problems in one area can cascade elsewhere and magnify risks dramatically for the system as a whole.

In this paper, West discusses twelve ways to build trust in the Information and Communications Technology (ICT) global supply chain. With the assistance of a group of leading experts brought together at the Brookings Institution in February, 2013 plus follow-up interviews, he explores the operational threats and technological vulnerabilities that we face, and makes recommendations to identify best practices, standards, and third-party assessment for supply chain assurance.

West argues that vulnerabilities in the supply chain and product development, generally, facilitate a myriad of attack and exploitation techniques, such as unauthorized remote access after product deployment for many malicious activities, degradation of ICT networks, and damage to critical infrastructures. West suggests that developing agreed-upon standards, using independent evaluators, setting up systems for certification and accreditation, and having trusted delivery systems will build confidence in the global supply chain as well as the public and private sector networks that sustain them. These and other types of evaluations make information available to purchasers and therefore give them a firmer basis for product selection.

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Darrell M. West

Building Trust in the Global Supply Chain

Thu, 18 Apr 2013 09:00:00 -0400

Event Information

April 18, 2013
9:00 AM - 12:00 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

Long supply chains and inadequate product evaluation before deployment create a situation of widespread vulnerability in Information and Communications Technology (ICT) supply chains. As trade grows more globalized, the supply chain has become more complex and challenging. Contemporary commerce involves hundreds of individuals, organizations, technologies, and processes across continents. In this situation, what are the vulnerabilities and what are the possible remedies for addressing those threats? What steps should be taken to ensure that supply chains are protected?

On April 18, the Center for Technology Innovation at Brookings hosted a forum to explore operational and technological threats to the ICT global supply chain and ways to identify best practices, standards, and third-party assessment for supply chain assurance. A panel of experts discussed the problems involved in cross-border supply chains and ways to address industry-wide risks.

Supreme Court Finds the Use of a Drug-Sniffing Dog to Investigate a Home Unconstitutional

John Villasenor — Wed, 27 Mar 2013 15:27:00 -0400

On March 26, the Supreme Court issued its decision [PDF] in Florida v. Jardines, a case involving police use of a drug-sniffing dog on the front porch of a home to detect marijuana growing inside. In a 5-4 opinion delivered by Justice Scalia, the Court held that “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”

In 2006, following a tip regarding marijuana being grown in a house, Miami police brought a drug-sniffing dog to the front porch. After the dog indicated the presence of drugs, police obtained a warrant, found marijuana in the house, and arrested Joelis Jardines. At trial, Jardines claimed that the use of the drug-sniffing dog was a Fourth Amendment violation. After a trial court and then the Florida Supreme Court agreed, Florida petitioned and was then granted a Supreme Court review, and oral arguments were heard in October 2012.

The Court’s opinion in Jardines is narrowly crafted, focusing on the government’s physical intrusion into the constitutionally protected area immediately surrounding the home (called the “curtilage”) for the purposes of gathering evidence. The Court acknowledged the existence of an implicit license permitting visitors to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” “Complying with the terms of that traditional invitation,” explained the Court, “does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters.” However, there is no implicit license to introduce “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence.” Since the officers were able to learn that marijuana was being grown in the home only by “physically intruding on Jardines’ property to gather evidence,” the search was unconstitutional in the absence of a warrant.

The majority opinion explicitly declined to consider whether the officers’ search of Jardines’ home violated his reasonable expectation of privacy; it was sufficient to find a constitutional violation based on what the Court characterized as “the traditional property-based understanding of the Fourth Amendment.” A concurring opinion from Justice Kagan and joined by Justices Ginsburg and Sotomayor went further. “Yes,” Justice Kagan wrote, the officers’ actions constituted a trespass. “Was it also an invasion of privacy? Yes, that as well.”

In some respects, the Jardines decision echoes the Court’s January 2012 decision in United States v. Jones [PDF], the GPS-tracking case in which Justice Scalia’s majority opinion also found a Fourth Amendment violation in the act of trespassing—in that case with respect to the physical intrusion involved in placing a GPS receiver on a car without a valid warrant. In Jones there was also a concurrence (two, in fact) suggesting that the information gathered by the government violated a reasonable expectation of privacy.

As technology continues to advance, it will become harder to rely on a property-focused view of the Fourth Amendment when assessing what constitutes a “search.” In fact it is actually the 2001 Kyllo v. United States case, and not this week’s ruling in Jardines or last year’s decision in Jones, that is in some ways more indicative of the types of complex questions the Court will grapple with in future privacy cases. In Kyllo, the Court considered the government’s use of a thermal imager in a car on a public street to detect the interior temperature of a home. There was no trespass in Kyllo, leaving the Court no choice but to evaluate the constitutionality of the government’s actions on the basis of what the technology itself could reveal. When the government “uses a device that is not in general public use,” the Court held in Kyllo, “to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Suppose that the police in Jardines had used the drug-sniffing dog—or, for that matter, an inanimate sensor—from the vantage point of a public sidewalk in front of the house? The majority opinion in Jardines doesn’t address this scenario. Justice Kagan and the two justices who joined her concurrence considered a trained drug-detection dog to be a device not in general public use, and on those grounds would have found its use unconstitutional in light of Kyllo. By contrast, Justice Alito and the three other dissenting justices disagreed that Kyllo was applicable in Jardines, noting that a dog is neither a new form of technology nor a device.

Technology is making it increasingly easy to access information that most of us would consider private without physically trespassing on private property. Mobile devices and apps, smart meters, and Internet histories can convey enormous amounts of information about activities both within and outside a home, all of which can potentially be accessed by third parties who never set foot in a home or its surroundings. Some of the most pressing privacy questions that will land at the Supreme Court’s feet in future years will involve exactly this sort of data, collected using technologies that are in general public use—and therefore outside the scope of the holding in Kyllo. When that happens, the Court will face the unenviable task of determining what, in today’s day and age, constitutes a reasonable expectation of privacy in light of technologies that are both highly sophisticated and widely used.

Authors

John Villasenor

Publication: Forbes

Education Technology Success Stories

Darrell M. West and Joshua Bleiberg — Wed, 20 Mar 2013 14:00:00 -0400

Editor's note: Governance Studies at Brookings released this paper in tandem with the Center for Technology Innovation public forum entitled Education Technology: The Next Generation.

In 2011, a student logged onto the online classroom Udacity to take the final exam for her introductory Physics class. Khadijah Niazi had overcome several barriers to finish that exam. She lived in Pakistan, which recently blocked access to YouTube, the site Udacity used to host its video lessons. Undeterred, she posted a plea for help on an Udacity message board saying “I am very angry, but I will not quit.” Hours later several classmates from Malaysia, Portugal, and England attempted to find a workaround that would allow her to finish the class. Soon a Portuguese professor found a way to download the videos from YouTube and then upload them to a photo-sharing website that Kadijah could access. The next day she took the final exam. Even more amazing than the technology know-how is the fact that Kadijah was 11 years old and aced the college level physics class with the highest distinction.

Advances in technology are enabling dramatic changes in education content, delivery, and accessibility. Throughout history, new technologies have facilitated the exponential growth of human knowledge. In the early twentieth century, the focus was on the use of radios in education. But since then, innovators have seen technology as a way to improve communication, learning, and the mastery of instructional material.

The next generation of education technologies is facilitating substantial change. Education technologies are evolving beyond lecture and group work to games, simulations, and augmented reality. Software is creating environments where students can direct the creation of their own knowledge with nearly invisible prompts from teachers.

One possible virtue of digital technology is the cost savings. During the Great Recession, the education service industry lost over one million jobs. State and local governments cut education spending, and this had ripple effects throughout the sector. Today educators from universities to elementary schools face an even more difficult task than before with fewer available resources. Given the political climate of budget cutting, the likelihood of a restoration of funding to pre-recession levels in the near future is low. In this situation, educational technologies take on increased importance as they seek to help over-burdened teachers deploy the next generation of assistive technologies.

Education faces unique resource problems beyond financial issues. The school day has a finite length and instructional time is a precious commodity. American students spend less time in the classroom than many other countries elsewhere in the world. Teaching is a complex job that includes a number of rote but time consuming tasks. Tools that facilitate the memorization of basic facts free up teachers to help students who need personalized interventions. Every extra minute spent teaching makes a difference over the course of the school year.

Recent advances in assessment technology have the potential to help teachers and students. Without feedback on performance, teachers can’t know if students have grasped the lesson and policymakers won’t know whether their reforms work. Assessment technology has advanced very little if at all since the invention of the optical scan answer sheet a half-century ago. New assessment technologies can help cut the costs of testing while others allow for reliable assessment in real time. Advances in testing can assess students in a low stakes environment.

While there are many innovations in education technology, this paper highlights five education technology success stories. Each has demonstrated the ability to improve efficiency and effectiveness in education systems. From language teaching robots to educational games, each has the potential to help students and teachers. The authors review these education success stories in order to offer lessons on how education stakeholders can better serve students and add value to their learning.

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Darrell M. West
Joshua Bleiberg

Education Technology: The Next Generation

Wed, 20 Mar 2013 14:00:00 -0400

Event Information

March 20, 2013
2:00 PM - 3:30 PM EDT

Falk Auditorium
Brookings Institution
1775 Massachusetts Avenue NW
Washington, DC 20036

Education technology is an accepted and integral component of reforming and improving the American educational system. The educational possibilities made possible by today's technology and mobile devices are expansive, with mobile phones apps, interactive games, distance learning programs, and environment software readily available to most students and teachers in the United States. Now that these tools are a common feature in the classroom, how can technology’s integration in education be expanded to best benefit students? How can educators incorporate the latest technologies to improve education and assess what proves effective? What future innovations can be expected in educational technology?

On March 20, Governance Studies at Brookings hosted a public forum to discuss the next generation of education technologies. A panel of experts discussed recent advances in educational technology and what new innovations are on the horizon. Participants can join the conversation on Twitter at hashtag #TechCTI.

Read the related paper: Education Technology Success Stories, by Darrell West and Joshua Bleiberg

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The United States Transitions to a 'First-Inventor-To-File' Patent System

John Villasenor — Mon, 11 Mar 2013 00:00:00 -0400

The United States has long had a “first-to-invent” patent system in which the date of invention could trump the date of filing a patent application in determining patent rights. However, that is set to change due to the America Invents Act (AIA), a sweeping patent reform bill signed into law by President Obama in September 2011.

For patent applications with an effective filing date of March 16, 2013 or later, the United States shifts to what is often – and only partially accurately – called a “first-inventor-to-file” or “first-to-file” system. The reality is more complex than those designations imply, as patent rights in the United States under the first-to-file system will depend on the interplay between the dates of filing and of any pre-filing disclosures of the invention.

As I explained in an article in Fast Company last year:

Consider, for example, the case of an employee at Company A, who conceives an invention in May, works diligently to reduce it to practice, and files the corresponding patent application in August. Suppose, further, that an employee at Company B independently conceives the same invention in June and files for a patent in July.

Who gets the patent? Under the pre-AIA first-to-invent rules, Company A can get the patent because its employee invented first. However, under the new first-to-file system, things will be more complicated.

If Company A does not make any public disclosures regarding the invention before the August filing, Company B can get the patent by virtue of its earlier filing date. This is exactly what would be expected given the term "first-to-file."

On the other hand, suppose that Company A describes the invention in detail (or in more formal terms, provides a disclosure) at a trade show, before a disclosure or a filing by the second company. In this case, Company A can get the patent even though it filed after Company B.

Pre-filing disclosures, however, have a very important downside that wasn’t changed by the AIA: They can eliminate the ability to obtain rights in the many international jurisdictions that do not recognize a “grace period” for disclosures made in advance of filing a patent application. What has changed is that under first-to-file silence can be more costly than before with respect to U.S. patent rights.

Under first-to-file, an inventor who does not take prompt action to protect his or her invention faces a higher risk that a later inventor will end up holding the associated U.S. patent rights. In part for this reason, the U.S. Patent and Trademark Office is likely to see increased numbers of provisional applications, which if done properly can be a cost-effective way to obtain an early priority date for a patent application.

Much ink has been spilled debating the merits of the move to a first-to-file system. It is often suggested, for example, that it will favor larger companies with more financial resources. However, as I explained in this Forbes article, that isn’t necessarily true. Larger companies may have more money, but they also have more people creating inventions. Smaller companies can be more agile in identifying which innovations are worth patenting, and then acting quickly to take steps to protect them.

While first-to-file has gotten significant attention, the AIA contains many other provisions [PDF] as well, most of which have already taken effect. Companies, universities, individual inventors, and other patent-seeking entities should update their procedures and training accordingly. A good patent attorney or patent agent can play a vital role in helping inventors navigate first-to-file and the other changes provided under the AIA.

Authors

John Villasenor

Publication: Forbes