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Intellectual Property Law: Law and Technology Theory
By Jim Chen et al.
This wasn?t a new idea. There is a long-standing strand in human thinking about technology that emphasizes the important (and sometimes apparently decisive) effect of our technologies on society. In 1620 Sir Francis Bacon wrote in the Novum Organum that:
??it is well to observe the force and virtue and consequences of discoveries, and these are to be seen nowhere more conspicuously than in those three which were unknown to the ancients, ?; namely, printing, gunpowder, and the magnet. For these three have changed the whole face and state of things throughout the world; the first in literature, the second in warfare, the third in navigation; whence have followed innumerable changes, insomuch that no empire, no sect, no star seems to have exerted greater power and influence in human affairs than these mechanical discoveries.?
Numerous subsequent writers have raised the same suggestion that the technologies that we create and use have profound effects on social structures and on human history. At the extreme, technology itself is viewed as a phenomenon that drives history and society. It seems likely that this idea is, in part, true. However, at the same time, technologies are produced and used by a given society and so are themselves determined by that society. In other words, the influence appears to flow in two directions between technology and society, and it is difficult to untangle the primary cause (if there is one).
And yet, the complexity of this interaction makes it seem sometimes as if technology calls the shots. As they said at the Worlds? Fair, society and individuals ?fall into step with,? ?adapt to,? or are ?molded by? the technology. In this pair of blog postings, I would like to tackle the following two questions. First, has technology and technological ideology so pervaded the law and judicial thinking that it can be said that the law is determined by technology rather than that technology is controlled by the law?
The second blog posting will look at the effects of technology on the autonomy of the individual human being rather than the effects of technology on the collective self-determination of humans in a society. In that second post, I would like to explore the mechanisms by which individuals come to feel obliged to adopt a given technology, and how inequality (of power, natural or material resources) between humans drives this process. With this second posting, I am indebted to Frank Pasquale, whose excellent recent posts in this blog and previous writing on equality and technology have spurred my thinking in this direction. My discussions with my good friend and extremely insightful colleague at the University of Ottawa, Ian Kerr, on the complex effects of technology on human equality were both fun and deeply illuminating too!
Onward with the first posting!
A year or so I published an article that asked whether courts control technology or simply legitimize its social acceptance. I raised this possibility because I kept coming across judgments that suggested that either (1) our legal rules are biased in favour of technologies and against competing non-technological values, or (2) judges find ways to reframe disputes in ways that tend to favour technologies. This is a bold accusation; it is possible that counter-examples could be proposed. However, let me give two examples to illustrate what I mean.
The doctrine of mitigation in tort law states that a plaintiff who sues a defendant for compensation cannot recover compensation for those damages that could reasonably have been avoided. So far, so good. It makes sense to encourage people to take reasonable steps to limit the harm they suffer. In practice, however, this rule has been applied by the courts to require plaintiffs to submit to medical treatments involving various invasive technologies to which they deeply objected, including back surgery and electro-shock therapy. Although plaintiffs have not been physically forced to do so, a seriously-injured plaintiff may face considerable economic duress. Knowing that compensation will likely be withheld by the courts if they do not submit to a majoritarian vision of reasonable treatment, they may submit unwillingly to these interventions. I think that this doctrine operates in a way that normalizes the use of medical technologies despite legitimate objections to them by individual patients.
In the trial level decision in the Canadian case of Hoffman v. Monsanto, a group of organic farmers in Saskatchewan attempted to start a lawsuit against the manufacturer of genetically-modified canola. The farmers argued that because of the drift of genetically-modified canola pollen onto their crops, their organic canola was ruined and their land contaminated. The defendants responded that their product had been found to be safe by the Canadian government and that it had not caused any harm to the organic farmers. Instead, the organic farmers had brought harm upon themselves by insisting on adhering to the organic standards set by organic certifiers and the organic market. The trial judge was very receptive to this idea that the losses flowed from actions of organic certifiers and markets in rejecting genetically-modified organisms, and not from the actions of the manufacturers. I find this to be a very interesting framing of the dispute. In essence, it identifies the source of harm as the decision to reject the technology, rather than the decision to introduce the technological modification to the environment. Once again, the technology itself becomes invisible in this re-framing of the source of the harm.
These judges do not set out to make sure that humans adapt to the technologies in these cases. Instead, I think these cases can be interpreted as being driven by the ideological commitments of modernity to progress and instrumental rationality. An interpretation of the facts or a choice of lifestyle that conflicts with these ideologies sits highly uneasily within a legal system that itself also reflects these ideologies.
More recently, I have begun to explore a second question along these lines. If judges and our legal rules are stacked in favour of technologies and against other values, what happens when it is the judges themselves who are in conflict with the technologies. Do the judges adapt? Here I turned to the history of the polygraph machine (lie detector), and the attempts to replace the judicial assessment of veracity with evidence from the machine. The courts have generally resisted the use of polygraph evidence on two bases. First, they say, it is unreliable. Second, the assessment of veracity is viewed as a ?quintessentially human? function, and the use of a machine for this function would dehumanize the justice system. While the judges appear to be holding the line at the attempted usurpation by the machine of this human role in justice, it is interesting to speculate about how long they will be able to do so. Will they be able to resist admitting reliable machine evidence, particularly given concerns about how reliable humans actually are at detecting lies. Novel neuro-imaging techniques such as fMRI which purport to identify deception by patterns of activity in the brain, represent the next step in this debate. If these neuro-imaging techniques are refined to the point that they are demonstrably superior to human beings in assessing veracity, would it be fair to exclude this evidence in a criminal trial? The right to make a full answer and defence to criminal charges may say ?no.?
I am currently researching neuro-imaging technologies and their use in the detection of deception in order to predict how our law may be affected by them. In the background is the continued question: Is it true that ?Science discovers, genius invents, industry applies, and man adapts himself to, or is molded by, new things...Individuals, groups, entire races of men fall into step with science and industry"?