I have had the privilege of being a member of the legal community since the early 1980s and of legal academia since the early 1990s. It used to be that I would look around at a conference and note that a majority of the attendees were peers of approximately my age. Well, that era has ended. Unless there is far more use of cosmetic surgery and hair dye within our community than I would guess, legal academia has moved to the next generation. As I have spent the day listening to presentations at IPSC, my optimism about the next generation’s custodianship of the Academy is reassured.
When I was a pup, the raging intellectual battle in my field was how could we possibly deal with this new thing: computer software. For some, programs required a radical transformation of the law because now “things are completely different.” For others, programs were nothing but a new way to write down information, so “nothing needs to change.” By the 1990s, two things became clear: (1) both sides of the debate were wrong but (2) the debate itself was critical for determining which analogies in the existing law would work for software and where the underlying concepts required modification to adjust the system to the new innovation.
Well, now the debate in my field has moved to artificial intelligence. If a computer generates a new invention, who owns the patent rights? It is not that this debate first came up this year as several of us have written about the area or the related copyright question years ago. The difference is that what could be predicted as technologically possible twenty years ago has become real. Computers are generating things that are outside of the scope of the programmer’s abilities and intellectual property protection for the innovations is being sought.
Not surprisingly, today’s battle is the same pattern as the one in the 1980s. The forces of “things are completely different” and of “nothing needs to change” are assaulting each other's castle. It is clear that the proponents of each feel that everything depends on winning the day. The cynical approach would be to predict the ultimate result: the castles of both groups will be destroyed and only rubble will remain, but I am not that cynic. For me it seems clear that the Academy is at it again and out of the battle will come the analytical advances that are necessary to continue moving us forward. In the mean time, for all of you who do not see the clear logic of my side of the argument: watch your flank!