Thursday, 31 March 2011
Anyone with responsibility for looking after small children in either a personal or professional capacity will know that life becomes easier for both the carer and the child once they learn how to share, in particular how to "share nicely" out of choice rather than compulsion. Eventually this develops into a desire to swap as well as share. I currently observe this with my own childrens' obsession in trading Match Attax cards (other brands of football cards or stickers are available).
And heading straight into the lazy, simplistic but true analogy, life is easier for lawyers too when we share with each other.
I know a law firm partner who told me he'd moved firms because in part he was fed up with the "eat what you kill" mentality of his old firm. Or, in schoolboy terms, his partners were not sharing nicely. Which is a shame, because an advantage that Big Law has over in-house is the ability to share knowledge on a large scale. Big Law has: professional support lawyers; vertical industry specialists of all flavours; online precedent banks covering all areas one can imagine; hundreds of years of combined legal experience on the shop floor; and the best firms even have on-site shirt dry cleaning pick-up and return services.
In-house has: thinly stretched transactional and contract lawyers who have to professionally support themselves; precedents that support the company’s core business but probably do not cater for much outside of the core franchise requirements; and for everything else there is a tendency to turn to PLC. We can't afford to dry clean our shirts in-house (cue sympathy) so the lack of that service isn't a problem.
The FT subscribes to PLC and I think it’s a pretty decent resource otherwise we wouldn’t pay for it. And I’m not the only one. A few months ago, Melanie Hatton, General Counsel at Latitude (aka @in_house_lawyer), conducted an ad hoc survey via LinkedIn regarding the online tools used by in-house counsel, and the survey respondents gave PLC a resounding thumbs up.
But there is a resource that’s even better than PLC. It’s called talking to people; networking; sharing; or - to use a buzz word - crowdsourcing.
I’m not a frequent participant on the legal conference circuit, but I will generally go along to one or two a year which focus on in-house lawyers. I go because these give me what day-to-day in-house lawyering cannot. The opportunity to speak to lawyers working across different sectors. The chance to stress-test ideas with peers. To hear what issues others are facing. To understand how they are dealing with those issues. For reassurance. For a nudge that maybe there’s something I haven’t focussed on which someone else has and which I ought to.
In-housers are generally good at sharing. There is no competitive background to our conversations (at least when we’re talking across sectors) and at the same time there is an unspoken trust. It has the potential to be a very powerful network. Maybe this is underplaying it, perhaps it already is powerful. But it certainly has the potential to be far more powerful. I believe that in-house lawyers can leverage the power of crowdsourcing to a far greater degree than we currently do, even to the extent of being able to completely change the legal landscape in information and knowledge management if we want to and can get ourselves organised.
As a lawyer working in the media sector, I make no apology for drawing an analogy from the media to make my point and recommend this article by the Guardian highlighting the power of crowdsourcing. The article highlights how the media, not least The Guardian, has used crowdsourcing with its readership to help reveal police involvement in the death of Ian Tomlinson and also in the investigation of MP’s expenses. Very impressive stuff.
I believe that there is scope for large,scaleable and technology driven crowdsourcing within the in-house community to help us move beyond the conference networking circuit and staple in-office diet of PLC. Indeed, the first formulaic signs of legal crowdsourcing are visible even now. Here are three examples:
1. Quora describes itself as “a continually improving collection of questions and answers created, edited and organized by everyone who uses it. [It aims] to have each question page become the best possible resource for someone who wants to know about the question. Quroa is not a service designed for lawyers, but don't worry, we're quite capable of spoiling the party and bending it to our own uses. There are many legal questions being asked on Quora and I’ve saved some of them which you can see at http://www.quora.com/Tim-Bratton if you are interested to see how people are using it.
2. Spindle is a service for lawyers and describes itself as “[organizing] the law into a tree. Each branch is an area of law that grows narrower branches for topics and rules. You can browse through topics, rules and cross-references.” It’s a US creation and so the focus is US law and contribution appears open to anyone, like a Wiki. This is one to kee an eye on, however, although I’m reluctant to criticise what looks like a great idea, the user interface and search capability clearly was not designed by an Apple or Google alumnus.
3. Twitter/LinkedIn, well we know what these are and they can work well as a quick crowdsource piece of the “Does anyone know?" variety. Laurie Anstis from Boyes Turner (who Tweets as @ljanstis) was kind enough when I mentioned to him I was writing this blog post to send me a couple of links (click here and here) illustrating how David Morgan from Burness (who Tweets as @davidmorganllb) has used crowdsourcing to research the approach being taken by employment lawyers when advising clients on the new default retirement age. Interestingly, both Laurie and David are private practitioners, so perhaps it’s wrong of me to have focussed this blog post on the benefits to in-house lawyers of crowdsourcing.
That reference to private practice is a nice if clumsy segue way into the inspiration for the title of this blog post to which I must attribute all rights (at least as between me and them, go after them for any third party claims please) to Field Fisher Waterhouse (FFW) partner, Simon Briskman and senior associate, Huw Beverley-Smith.
Simon and Huw were kind enough to visit the FT’s Legal Team a few weeks ago to demonstrate a legal wiki they are developing internally. Their presentation included an introduction to the theory of crowdsourcing, that is the illustration of the wisdom of crowds by reference to the crowd at acounty fair accurately guessing the weight of an ox when their individual guesses were averaged. Simon and Huw’s example referred to the weight of a cow rather than an ox, hence their coining of the phrase cowsourcing – very clever, I thought (and certainly cleverer than the averaged guesses of the FT’s lawyers which managed to disprove the whole wisdom of crowds theory, but therein lies another story about a certain Australian lawyer who thinks that cows weigh the same as people, you know who you are if you’ve tuned in.....).
What I particularly liked about FFW's wiki is the equality of voice which the firm has encouraged. Simon and Huw showed us examples of how the wiki has grown using contributions ranging from newly qualified solicitors to senior partners, each building on the last contribution. Commentary on, for example, the use of indemnities in practice, gives the wiki potential to be far more than just another intranet resource which might only define "what is an indemnity". The idea of allowing all lawyers to contribute on an equal basis will result in a far better resource than the traditional doling out of annual objectives to create firm precedents. Encouraging the less senior lawyers to publish in this way will improve them as lawyers by forcing them to practice their own quality assurance before publishing something with their name on it. The wiki looked like it will be far more than just a precedent bank, and includes intelligent commentary on issues and specific client hubs focussing, for example, on the issues pertinent to particular clients and how they like their advice delivered.
I had a discussion wih Simon and Huw on the pros and cons of FFW making the wiki available to clients. To me (the FT is not a client, although other companies within the Pearson group are) it is a no-brainer. Make it available to clients, ask clients to contribute, and the product will improve. To the firm, whilst it sounded like this has not been ruled out, it is not such a no-brainer. FFW are (understandably) questioning the potential optics around quality. The downside of the egalitarian approach the firm has taken to internal contribution, means that the accuracy and quality of material on the wiki may not always be to the same standard the firm would put on its own letterhead. FFW are considering whether a publicly available sub-perfect product, however innovative, could result in collateral brand damage. This is a fair concern and wherever FFW end up with their wiki I applaud them for undertaking some innovative product development.
Those concerns highlight the difference between law firms and, say, Google. Google Labs is the place on Google where it makes its not-quite-ready-for-market products available for testing by the geeks. This is product beta land, where Google actively seek feedback from the user community, allowing them to finesse their services before formal launch. Although no doubt Google Labs services go through an internal QA prior to launch in the lab, the whole point of the lab is that the services available within it are not perfect and have scope for improvement.
The Google approach is not for everyone (contrast it with the Apple approach to perfectdom before any product release). But why couldn't it work for certain law firm services?
In-housers: put your hand up if you would like to access an innovative law firm service, such as FFW's wiki, even if it is not perfect. Put your other hand up if you'd be prepared to use that service even without the usual law firm guaranteee of quality. Both hands up? Thought so. I do not for one second want to give the message that sub-standard law services are okay, they are not, but less than perfect "beta" services are. If I instruct FFW (or any law firm for that matter) formally, then I want top drawer advice that I can bet the farm on, nothing else. But if I can use their wiki for free, I'm going to treat that as just another resource and not place disproportionate reliance on it. So I encourage law firms to adopt a Google Labs mentality to this kind of thing. Devise, launch, refine, collaborate, improve. As long as it's clear that it is is a law firm labs project, so to speak, I think the risk of brand damage is minimal and far outweighed by the brand kudos likely to be generated by such innovations.
Back to my idea of in-house crowdsourcing. Yes, there are sticky points to the idea to overcome, most obviously issues of confidentiality, privilege and ensuring there is no risk of transgressing competition laws. But with the right piece of technology sitting in the middle, allowing contributions to be anonymised etc., then I imagine these objections could be overcome. That does leave the issues of quality assurance and accuracy to navigate, but a combination of peer review and potentially a central "editor" could nail those concerns. And yes the technology would need to be pretty funky, intuitive, search-clever and user-friendly. But it's just another platform. The content, dear reader, would be up to us. And the rules? In order to share, you have to share. That's it. A kind of creative commons licence if you will. To use precedents, commentary, war stories, whatever. A grown-up business social media tool for lawyers, but which allows a greater degree of sharing than currently available platforms.
So if any technology providers are reading and want to discuss more, let me know. And even better if you are a VC with some spare seed capital sloshing around, then I'm sure we can cut a deal (I've seen Dragons’ Den, I know how it works) and then sell for at least a ten x multiple in a couple of years. But most importantly, lawyers, what do you think? Is this all naive optimistic theory, or could we make it work? Let me know. As a profession we never underestimate the wisdom of lawyers. And the theory of the wisdom of crowds is proven. So let's exploit the wisdom of lawyers in crowds and see what happens. Right, I'm off to cancel my PLC subscription.
Sunday, 20 March 2011
It’s great to have had some feedback to my post last week (Hargreaves and the Call for Evidence: why creating an RCP is easy as 1, 2, 3) and I think it illustrates the challenge ahead for Professor Hargreaves and team. As well as the comments below the original post (see in particular @drycloud's blogged response at over the counter culture), Emily Goodhand (@copyrightgirl) and @BrightSparkBlog have responded with some comments on Twitter which can be found by searching their @names.
I’ll respond to some of the points that have been made. But first, a quick caveat. I normally blog as me in my personal capacity, not to reflect the views of the FT (my employer). However, on this issue those views are aligned so I make no apology for the "we" and "our" references in this post and indeed I've partly worded it using these terms to make clear that my posts on Hargreaves do generally reflect a corporate (and personal) position, not simply a personal position. Blogging transparency and all that.....
To address PDJ Bradley’s (@drycloud) points. I’m not saying that the Pre-action Conduct Practice Direction has not worked and indeed it is well-intentioned. However, it only really comes into play once parties either are litigating or are about to. The RCP is intended as a body that people could turn to before that point in time.
Although I disagree, I see the rationale behind @drycloud’s argument that the RCP could form a choke-point to be cynically used by rights-owners. I doubt I can convince @drycloud that this is not our intention – but it would require an uber-cynical rights-owner to spend time researching an idea, presenting it to Hargreaves, and to blog on it to gauge views, all with the intention of abusing the RCP if it ever sees the light of day. I do however agree with the point made by @drycloud (and also by @copyrightgirl in her Tweets) that the Panellists should be drawn from a wider constituency than originally suggested, to include academic institutions and non-commercial users. The broader the Panel, the more effective (and objective) it should be, which is in everyone’s interests.
As for @drycloud’s “revolving door corruption” theory, well yes, the Panel clearly would need exemption from liability for its decisions. But a weak or “bad” Panel would mean an under-utilised Panel which ultimately would mean a non-credible and extinct Panel. Surely if the right mix of credible Panellists were chosen to sit on the RCP, the risk of revolving door or any other kind of corruption would be mitigated? Let me be clear. We are NOT proposing a Panel staffed by rights-owners for the benefit of rights-owners.
And in final response to @drycloud’s points, the Pearson submission to Hargreaves (publicly available at the IPO website) does focus on DRM as another solution. My Pearson colleague @simonjuden can talk with more authority on that subject than me, but suffice to say, we see that common meta-data standards can only have benefits for owners and users.
Emily, BrightSparkBlog and Richard Moorhead (@richardmoorhead) all rightly pose questions as to under whose authority the RCP would sit – for example, as part of the IPO or pursuant to some kind of Ombudsman model? Richard also asks whether its decisions could be binding. To be honest, I’m not sure under whose auspices it should sit and others within the IP community will have more informed thoughts than I do on this point. We certainly aren’t trying to create a Press Complaints Commission type model for copyright, because we’re aware that “self-regulatory” models raise suspicion as to their intentions. But neither did we want to recommend a statutory body, as we’re not sure in the current environment that government has time/money to establish and fund a body such as that we’re recommending. We believe the Panel could be more or less self-funding by petitioner’s fees (particularly since the “Panel” would be a reactive body, sitting only to hear petitions; it would not be a body such as say the Advertising Standards Authority that needed a full-time staff to operate it). As for Richard’s binding or non-binding question – we deliberately went the non-binding route for two reasons. First, to suggest something that can be established relatively cheaply and quickly and which can also operate on a cheap/expedited basis. Second and more importantly, to create something that can facilitate deals between owners and users (like CEDR), not something that by its binding nature is adversarial.
Finally, I look forward to hearing more from @shireensmith if Shireen has the time in relation to why she does not think the RCP would benefit start-ups. I don't know Shireen's exact client base, but I certainly assume Shireen knows the start-up scene far better than I do, so it would be good to know why she believes the RCP may not benefit some of her own clients. Wouldn't there ever be any benefit in a start-up/SME getting an objective and cheap Panel view on whether a new business model might fly or run into legal issues early on?
I’m grateful for all of the comments – and any more that may follow. It would be boring if we all agreed, wouldn’t it? And it’s only right that any new ideas that anyone has put forward to Professor Hargreaves have their tyres kicked by all sides of the digital marketplace to either improve them or to prove that they are non-starters. I hope the idea of an RCP can be improved with more critical analysis rather than proven to be a non-starter.
Wednesday, 16 March 2011
However much work you have to do right now, however many unread documents or emails are sitting in your inbox, spare a thought for Professor Hargreaves and his team. On Friday 4th March the broadband network at the Intellectual Property Office must have been creaking for bandwidth as submissions arrived in response to their Call for Evidence.
IP-watchers will know that Professor Hargreaves was asked to review the existing
intellectual property law and framework “to consider how it might be changed in the interest of promoting innovation and economic growth”. He and his team now have the task of reviewing these submissions, making sense of them and reporting to Vince Cable and George Osborne next month. UK
The Prime Minister didn’t really do Professor Hargreaves many favours when he announced the review, painting a fairly unrealistic picture that Google, when starting out, could not have made a success of its business in the UK due to its draconian copyright laws. Poor Larry and Sergey had to launch in
Silicon Valley instead of Shoreditch High Street which I’m sure would otherwise have been their preference.
All joking aside, the Prime Minister cast a shadow over the review which, in political terms, may have encouraged respondents to take extreme positions. The copyright up against the copyleft as it were. I hope this is not the flavour of the submissions since, as always in business, a collaborative approach between organisations is far more likely to result in change for the better for everyone, both rights-owners and users alike.
The Financial Times (FT) is owned by Pearson Plc and we have worked very closely together in preparing the submission made by Pearson to the review team. In doing so, we tried to focus on what Professor Hargreaves had requested – that is, a Call for Evidence; not a Call for Opinion. You should be able to read the entirety of our submission on the IPO’s website, but in this blog post I’d like to talk about one element of it that we believe is original, innovative and could facilitate the growth of the digital economy that the government rightly wants to achieve. And that is, the creation of what we have called a Rights Clearance Panel (RCP).
We have recommended the creation of a Panel which “provides both rights owners and users the opportunity, at minimal cost, to petition the RCP for non-binding guidance as to whether a particular use made or proposed by a user of third party content without an express licence to do so from the owner, infringes UK copyright and whether a defence is available if such use constitutes copyright infringement.” Or as we also referred to it in our submission, “an independent intermediary and non-judicial body, which it is cost-effective for petitioners to access, with jurisdiction to hear copyright disputes and issue non-binding guidance in relation thereto.”
Let’s take a quick time-out. Firstly, why is a content-owner like Pearson proposing the creation of a body that could – gasp – make it easier for third parties to understand whether or not they are entitled to make use of Pearson’s IP? And secondly, isn’t the creation of the RCP just an idea or an opinion, what’s it got to do with the evidence requested by Professor Hargreaves?
I’ll answer the second question first.
Pearson’s complete submission sets out an evidence based argument why litigation does not assist either rights-owners or would-be users of those rights. It is expensive and time-consuming. We cite evidence submitted to both the Gowers Review and stated in the Jackson report that puts the cost of IP related litigation as in the region of £1million. That is prohibitive to start-ups or SMEs seeking to push the envelope of IP law (too much risk kills innovation) and, believe it or not, also prohibitive to rights-owners wanting to enforce their rights. In addition to being expensive, litigation takes time. Is it worth litigating today’s new business model, when by the time of trial, what looked worth fighting over one or two years ago has ceased to have relevance in a changing market? Often, the answer will be no. The litigation process is ill-fitted to serve a fast technology driven economy.
So having identified the problem, why do we think the RCP is a solution?
Other than (one) the cost and (two) the (lack of speed) of litigation, a third argument underpinning our recommendation is the evidence-proven fact that low-cost and easy to access dispute resolution processes result in an increased willingness of parties subject to a dispute to use them.
We studied some existing alternatives to litigation in the non-copyright context. In particular, the Uniform Domain Name Dispute Resolution Policy which ICANN requires all registrars of top level domain names to adopt as a dispute resolution procedure for resolving disputes regarding the ownership of domain names. WIPO handle a decent chunk of UDRP cases claim to hear and dispose of some 2,000 cases each year and the cost of filing a complaint varies between $1500 to $5,000. We also looked at the analogous Nominet Dispute Resolution Service which can be used by complainant’s at a cost of just £750. In addition, the number of complaints submitted to and dealt with by each of the Advertising Standards Authority and the Press Complaints Commission evidence that quick, cheap-to-access complaints processes encourage their use by complainants. The data backing up these assertions is available in the complete Pearson submission.
I think that our fourth and final argument in favour of the RCP is the most interesting and, if we say so ourselves, possibly the most unlikely argument for a rights-owner to put forward. That is, litigation is generally the preserve of the rights-owner, the would-be claimant. A user of third party intellectual property is a potential defendant, who has no means (other than seeking legal advice or an expensive declaration of non-infringement from the court) of ascertaining whether or not a proposed unlicensed use by them of third party intellectual property may lead to legal proceedings being issued against them. Users will usually only find themselves party to a dispute on a reactive basis. There is no proactive objective mechanism available to them to seek to pre-emptively address issues that might only otherwise be addressed once litigation commences.
Such potential defendants wishing to make use of third party intellectual property in the absence of a specific licence or other right to do so, must consider whether such use is lawful and permitted in the absence of an express right. Part of the diligence process carried out by such users may involve obtaining legal advice, often at relatively substantial cost, and such advice will often be less than definitive as to whether a particular business model is lawful or not. The cost of such diligence and the uncertainty of its outcome may stifle innovation, particularly by start-ups and businesses operating in the SME sector. The introduction of a RCP would allow otherwise would-be defendants to obtain non-binding guidance on whether an actual proposed activity is lawful, removing to a large degree the uncertainty of whether such activity is likely to lead to a successful claim being brought against them by a rights-owner.
I work for a rights-owner and I will not pretend that we don’t see benefits for rights-owners too. As stated above, the cost of litigating is a barrier to entry to rights-owners using it as an enforcement tool. Rights-owners would be able to utilise the RCP as a cost-effective way of obtaining non-binding guidance as to whether a particular use made of their rights by a third party is or is not unlawful. And that guidance could effectively become a useful business development tool for rights-owners seeking to encourage reluctant users to strike a deal to formalise any unlawful use of rights.
So having recommended the creation of the Panel, how do we see that it might work? We suggest that its remit be limited to copyright, to start with at least. That petitioners would be required to meet a baseline criteria in order for the Panel to accept a submission in order to avoid vexatious or nuisance claims. That it adopt a “paper hearings” approach (i.e. written submissions only), with a cap on the length of submissions. It would issue written “decisions”, published on its website, from which there would be no grounds of appeal due to the non-binding nature of the guidance. Finally, a panel of copyright and industry experts would sit on the RCP as potential panellists to hear a petition. We recommend that a suitable mix of lawyers and business executives (drawn from both the rights owner and user business communities) would constitute the optimal combination of individual panellists, ensuring that the RCP is free to adopt a business and commercial emphasis in its pragmatic application of the law.
The ultimate goal would be to establish the RCP as a best-of-breed model for resolving copyright disputes which could be adopted across the world.
We recognise the potential weaknesses with a body whose remit is restricted to only issuing non-binding guidance. But we want to ensure that the focus of the RCP is to offer fast and cheap guidance and to encourage parties to discuss their differences in a non-adversarial manner that does not require the parties to incur substantive legal fees. We also believe that our desire for the RCP to take a business-led approach in applying the law and issuing its guidance may be curtailed if the RCP were created as a judicial body. The success of organisations such as CEDR, who claim that over 70 per cent of cases referred to CEDR Solve for Mediation settle, prove that non-binding models can work.
Nevertheless, in order to give RCP guidance some “bite”, we have also suggested that Professor Hargreaves consider recommending a change to the Civil Procedure Rules, to provide the courts with discretion to make adverse costs orders against eventual litigants who do not utilise the RCP in appropriate cases and who fail to comply with its guidance in circumstances where a subsequent court decision is broadly similar to the guidance issued by the RCP. Over time, as a successful Panel established a credible reputation, perhaps the courts could even consider referring disputes to the RCP as an alternative mediation body.
Professor Hargreaves has been asked by the government to consider how the law and its framework might be changed in the interest of promoting innovation. We have collated evidence which demonstrates that the
courts do not offer either rights-owners or users with a framework for the resolution of disputes or even the answering of questions in a manner which facilitates or encourages innovation. UK
We believe that the creation of an RCP would correct this procedural barrier and allow both rights owners and users to innovate even more than they currently do under the current
statutory framework. UK
To conclude, I’ll answer the first question I posed above – why is a content-owner proposing the creation of a body that could make it easier for third parties to understand whether or not they are entitled to make use of its IP? Readers not familiar with Pearson or the FT might think this is a strange idea for a rights-owner to put forward. Have the copyright turned copyleft?
Although Pearson is a business built on intellectual property, it is not an organisation on the copyright, so-to-speak. Pearson is an organisation which states it is “Always Learning” and that strives to be Brave, Imaginative and Decent. Corporate guff? We don’t think so and I think our proposal to Professor Hargreaves is brave, imaginative and decent. Yes, Pearson and the FT want to ensure that they obtain a return on their investment in intellectual property. Yes, we will protect our businesses when we have to. And yes, you will find arguments in our full submission as to why, for the most part, we believe the existing statutory framework facilitates that innovation. But we realise that the process for clearing rights could and should be easier, cheaper, better. The RCP could go some way to achieving that. To making it easier for businesses both large and small to achieve certainty. With certainty comes investment. With investment comes innovation. And both Pearson and FT are organisations which support innovation wholeheartedly – whether in Shoreditch High Street or in sunnier climes.