I’d like to take that up as the topic of my post, through a look at the little-known legal life of the light bulb.

Thanks to Zetson for the CC-licensed image, via Flickr

More than a century after its introduction, the light bulb remains the defining icon of invention.

Justifiably so, in my opinion, because this widget almost single-handedly drove the demand for electrification. The light bulb was the killer app, if you will, for electric power. Which in turn enabled a whole new era of innovation.

But the story I want to tell is not one of great inventors and the inevitable march of progress. Hardly. It’s a story of legal battles, corporate strategy, social (in)justice, and lost technological opportunities.

Now as a girl, I was taught that Thomas Edison invented the light bulb. Full stop. That simple.

My fourth-grade class even took a field trip to Edison’s estate where, we were innocently led to believe, the Great Inventor single-handedly fathered the light bulb, the movie camera, and the phonograph (whatever that is).

Only very recently did I come to appreciate the much messier truth…

Edison’s team was merely one of dozens that co-invented electric light bulb. Scientifically speaking, his team’s discoveries were neither the first, nor the most important.

Image provided by the National Archives at www.ourdocuments.gov

What Edison did better than all the other inventors took place not in the laboratory, but in the office.

His lawyers pursued, obtained, asserted, and litigated key patents on light bulb technology in order to run competing bulb manufacturers out of business.

Edison then leveraged his monopoly on bulbs to corner the market in electricity service as well. And that was where he made the big bucks. Ever hear of GE?

Now the fourth-grade account suggests that we should thank Mr. Edison for bringing us this amazing technology. Without his long hours in the laboratory – he even slept there! – we would still be in the dark.

But when you look at the history more closely, Edison’s scientific contribution starts to look pretty dispensable.

Scientists had already published instructions for producing a glowing electric bulb in 1709. The technology was already commercially viable in 1876. A few years later, London’s Savoy Theatre switched from gas lighting to electric bulbs supplied by Joseph Swan.

It was at this point, in 1879, that Edison filed for his first patent on “an improvement in Electric Lamps and in the method of manufacturing the same.” The improvement Edison claimed was the use of a certain type of filament inside the bulb.

Now, a patent is just a claim to have invented something new and therefore, to own that technology as intellectual property. It’s not proof of inventorship. Moreover, patent filers often claim ownership of ideas much more broadly than the law and facts actually warrant.

For these reasons, competing companies often end up in court to determine exactly who owns what.

For example, Thomas Swan had light bulb patents of his own, the first predating Edison’s by 19 years. He had even been granted a patent in England claiming the same discovery Edison’s team claimed to have made. But he was unable to retain the legal upper hand.

Even though it was never legally established that Swan’s bulbs infringed on Edison’s patents, the shadow of IP law made it too risky for Swan to continue competing with Edison. The two companies merged.

In the process, competition in the light bulb market — and therefore the race to roll out improvements resulting in less-expensive, longer-lasting light — was severely curtailed. It would be half a century before ordinary Americans could afford electric lights.

For that to happen, it took not only the invalidation of key patents claims surrounding the light bulb, but also a bitterly contested political battle over the entry of federal and local governments into the business of electricity generation and supply.

The story of the light bulb reveals that the relationship between patents, innovation, and the spread of new technologies is more complex than is widely understood.

Companies who stand to benefit from longer, stronger patent protection would have us believe that patents promote innovation by providing greater incentives to invention. And there is good reason to believe that is at least sometimes the case.

But often, it works the other way. Patents are claimed by parties with no unique claim to invention, and used as weapons to stifle competition.

The result can be a paradoxical delay in scientific advancement, widespread access to new technologies, and opportunities for new businesses and opportunities that build upon that technology.

For an illustration, consider the biggest technological game-changer since electricity itself: the Internet.

photograph (c) alles-schlumpf, via Flickr

Where would we be today if Robert Cailliau and Tim Berners-Lee had sought patents on the World Wide Web in 1990, requiring anyone who wanted to provide a web-based service to negotiate a license with them?

Would we have smart phones, apps, and cloud computing today? Start ups? Google? Wikipedia? Internet memes? Even online shopping?

Almost certainly not. Software-based innovation moves so fast precisely because the Internet open, its underlying technology not controlled by any one company. It’s one area where IP law doesn’t get in the way of innovation.

Ensuring that access to new technologies spreads as rapidly as possible is an issue of distributive justice and, I argue, human rights.

But it’s also critical to economic growth. Each new technology paves the way for the next generation of business opportunities. When we slow their spread, we are shooting ourselves in the foot.

For more on these ideas, check out my speech at the Yale ISP’s recent conference on Access to Knowledge and Human Rights or my article forthcoming in the Wisconsin Law Review entitled The Right to Science and Culture.

Download link: [OGG] [MP4]

The work combines footage from interviews with a number of entrepreneurs, activists, and scholars shot at last summer’s Open Video Conference, including: Yochai Benkler (ISP Affiliated Fellow), Shay David ISP Visiting Fellow), and Adi Kamdar (ISP Student Fellow), and Lea Shaver (Director, ISP Access to Knowledge Research Program).

The Open Video Alliance has the video online — available for download, in open format, subtitles coming soon — at http://openvideoalliance.org/why-open-video/?l=en.

February 11-13, 2010 at Yale Law School

This conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

Conference Organizing Partners include:

Thursday, February 11, 2010

Film Screening and Panel Discussion

Friday, February 12, 2010

Welcome and Opening Remarks

Panel I. Perspectives on Access to Knowledge and Human Rights

Panel II. Technologies of Dissent: Information and Expression in a Digital World

Panel III. The Right to Health: Promoting Innovation and Equity

Panel IV. The Right to Education: Realizing the Potential of Digital Tools

Saturday, February 13, 2010

Panel V. Freedom to Innovate: Knowledge, Technology, Culture

Panel VI. The Right to Science and Culture: Participation and Access

VII. Concurrent Workshops

Identifying Challenges & Opportunities for an African Information Ethics

The Right to Read: Copyright and Access for Persons with Disabilities

The Right to Development: Bridging the Gap between Human Rights & IP?

Panel VIII. Rights-Based Strategies for Advancing Access to Knowledge

Click any of  the links above for A2K4 panel descriptions, photos, summaries, video archives, and additional resources.

For more information about the conference, visit: A2K4: Access to Knowledge & Human Rights

Blogging, video, and discussion of the conference may be followed at http://yaleisp.org. The best link for accessing these materials is: http://yaleisp.org/2010/02/a2k4main.

Twitter users are encouraged to submit questions and comments to panelists using the hash tag #a2k4. You can also follow this discussion even if you do not have a Twitter account.

Thanks are due to the Kauffman Foundation for their generous sponsorship of this conference.

We would also like to acknowledge the contributions of our A2K4 organizing partners:

3D: Trade, Human Rights, Equitable Economy; AAAS Science and Human Rights Program; Access to Knowledge for Development (A2K4D) Center, School of Business, American University in Cairo; A2K Research Program at the Fundação Getúlio Vargas School of Law in Sao Paulo; Association for Progressive Communications; Berkman Center for Internet and Society at Harvard University; Centre for Technology and Society at the Fundação Getúlio Vargas School of Law in Rio de Janeiro; Centro de Estúdios Interdisciplinários de Derecho Industrial and Económico; Consumers International; Electronic Frontier Foundation; Human Rights USA; Institute for Information Law and Policy at New York Law School; Intellectual Property Watch; IQSensato; Knowledge Ecology International; Orville H. Schell, Jr. Center for International Human Rights at Yale Law School; UCT Intellectual Property Law and Policy Research; University of Wisconsin-Milwaukee School of Information Studies.

Lea Shaver, director of the Yale ISP’s research program in Access to Knowledge, also contributed opening remarks…

Access to Knowledge has been a major focus of the Yale Information Society Project’s research for several years. A2K4 follows on the heels of three other major conferences: A2K, A2K2, and A2K3.

But for those who may be new to these events, a few words on what we mean by “access to knowledge” or “A2K.”

The unifying feature of the A2K community is a concern to preserve, protect, and advance knowledge as a public good, which all should enjoy access to.

“Knowledge” here refers not just to things like a Yale education, access to fine literature, or a high-speed Internet connection. The A2K movement is particularly concerned with the ways in which access to knowledge impacts the lives of the poor and vulnerable. For example: control over crop seeds, affordable medicines, and primary textbooks.

Historically, the access to knowledge movement emerged as a reaction to the 1994 TRIPs Agreement, which dramatically changed the way that intellectual property is regulated internationally.

The philosophy that TRIPs embodied may be described as “IP maximalism” — the belief that the more strongly intellectual property is protected, the better. The A2K movement emerged out of organizations that criticized that approach, pointing out a number of ways in which stronger IP protection was harmful to the public interest.

The best-known area of activism is around access to essential medicines, such as treatments for HIV, that was endangered by new patent rules. But the A2K movement is much broader; concerned also with the ways that IP rules limit access to educational materials, seeds, cultural works, and IT software and hardware.

The concerns of the A2K movement also extend beyond intellectual property. They encompass Internet governance, innovation and technology policy, and competition regulation.

As we’ll see over the next two days, access to knowledge impacts a number of human rights issues. This includes civil liberties such as freedom of expression and privacy. As well as issues of distributive justice such as access to education, health care, and science and culture.

So one goal for this conference is to advance A2K-related legal and policy issues that can improve the state of human rights around the world. A second goal is to explore how A2K advocates might take more conscious advantage of human rights approaches in their work.

One question on the table, however, is whether this is even a good idea. Just because A2K concerns can be articulated in terms of human rights does not compel the conclusion that they should. Indeed, there are very much two sides to this debate.

On the one hand, human rights offers an international normative and legal framework from which to critique the recent approach to IP. Because rights-based arguments have some qualities of a “trump” to them, they may open up new avenues for advocacy and legal challenge.

It is far from clear, however, that such efforts will be effective in shifting the dynamics of existing struggles over IP. Many in the A2K community are highly skeptical of human rights language, having heard many times the claim that intellectual property rights are human rights.

In the words of scholar Kal Raustiala, “It remains to be seen whether the marriage of human rights and IP will make international IP rights more socially just, or just more powerful.” Kal Raustiala, Commentary: Density and Conflict in International Intellectual Property Law, 40 U.C. Davis L. Rev. 1021, 1037 (2007).

The dual-edged nature of this dilemma, however, only reinforces the conclusion that the A2K community cannot afford to ignore the human rights debate, any more than the human rights community can afford to ignore access to knowledge concerns.

This weekend’s conference is an opportunity to explore in depth the issues encountered at the intersection of access to knowledge and human rights. Our esteemed panelists will be addressing three central questions:

In what ways do intellectual property, Internet governance, technological regulation and innovation systems impact human rights — both civil liberties as well as socioeconomic entitlements?

How can leveraging rights-based methodologies, arguments, and institutions advance A2K goals? What new risks might these strategies carry?

As we move toward greater collaboration between the human rights and A2K communities, wherein lie the greatest opportunities and challenges, and how can we rise to meet them?

For the full agenda of the conference, as well as links to blog posts, archived video, and additional resources for each panel, please visit http://yaleisp.org/2010/02/a2k4main.

The right to take part in cultural life, to share in scientific progress, the rights to education, health care, and food: all are impacted by and impact upon policies and movements around intellectual property and Internet freedom.

This two-day conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

The conference will feature a diverse range of academics and practitioners in panels on topics including Perspectives on Access to Knowledge and Human Rights, Technologies of Dissent, The Right To Health, Digital Education, Freedom to Innovate, The Right to Science and Culture, Information Ethics, The Right to Development, Accessibility and the Right to Read, and Rights-Based Strategies for Advancing Access to Knowledge.

For more information, schedule, speakers list, program, and to register, please visit: http://www.law.yale.edu/intellectuallife/a2k4.htm.

The conference is being hosted by the Yale Information Society Project, an intellectual center examining the implications of the Internet and new information technologies for law and society. Organizing partners include the following:

3D: Trade, Human Rights, Equitable Economy

AAAS Science and Human Rights Program

Access to Knowledge for Development (A2K4D) Center, Department of Economics, School of Business, American University in Cairo

A2K Research Program at the Fundação Getúlio Vargas School of Law in Sao Paulo

Association for Progressive Communications

The Berkman Center for Internet and Society at Harvard University

Centre for Technology and Society at the Fundação Getúlio Vargas School of Law in Rio de Janeiro

Centro de Estúdios Interdisciplinários de Derecho Industrial and Económico

Consumers International

Electronic Frontier Foundation

Human Rights USA

Institute for Information Law and Policy at New York Law School

Intellectual Property Watch

International Center for Trade and Sustainable Development

IQSensato

Knowledge Ecology International

Orville H. Schell, Jr. Center for International Human Rights at Yale Law School

UCT Intellectual Property Law and Policy Research

University of Wisconsin-Milwaukee School of Information Studies

Please save the date for the Fourth Access to Knowledge Conference (A2K4) scheduled to take place at Yale Law School on February 12-13, 2010.

Access to knowledge (A2K) is about designing intellectual property laws, telecommunication policies, and technical architectures that encourage broader participation in cultural, civic, and educational affairs; expand the benefits of scientific and technological advancement; and promote innovation, development, and social progress across the globe.

The Information Society Project at Yale Law School has already hosted three major conferences on access to knowledge. These helped to lay intellectual groundwork for theorizing A2K as a framework for public policy and to consolidate a broad international A2K movement.

This year, we will again host a major A2K conference, but with a more specialized theme: the intersection between access to knowledge and human rights.

The right to take part in cultural life, to share in scientific progress, the rights to education, health care, and food: all are impacted by policies and movements around intellectual property and Internet freedom. This conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

The two-day conference will feature a diverse range of academics and practitioners in plenary panels on topics including Access to Knowledge and International Human Rights, Technologies of Dissent, The Right to Culture and Science, and Digital Education and The Right to Learn. The conference will also include breakout sessions of working groups organized around specific issue areas such as: climate change, gender equality, Internet freedom, food security, access to medicines or other topics, depending on the interests of attendees and partner organizations.

The conference is being hosted by the Yale Information Society Project, an intellectual center examining the implications of the Internet and new information technologies for law and society.  More information can be found at http://yaleisp.org/2009/11/a2k4/ or http://isp.law.yale.edu.

To subscribe to the Yale ISP events announcement list, visit http://mailman.yale.edu/mailman/listinfo/isp-internal.

Yochai Benkler: Friday Keynote Address

Mozilla: The Future of Open Video

Lizz Winstead: Featured Talk

In her presentation, Shaver suggested that open video promotes human rights in two ways, strengthening freedom of expression and cultural participation.

Lea Shaver, Yale ISP

Using examples from the recent mass demonstrations in Iran, Shaver highlighted how people were using digital video to defend their human rights, and examined the limits to these possibilities imposed by the current closed nature of most video technology.

The slides from Shaver’s presentation, including a complete transcript, are available for download here: [ppt]

A video recording of the panel will be made available online from: http://openvideoonference.org

The “Open Video Conference” is sponsored by Yale Law School’s Information Society Project (ISP), the Participatory Culture Foundation, and Kaltura, in partnership with Mozilla, Creative Commons, and the Berkman Center for Internet and Society at Harvard.

“What is Open Video?” an open video

Detailed conference schedule

Register now to attend

A partial list of highlighted speakers is now available…

• Clay Shirky — Professor at NYU’s Interactive Telecommunications Program
• Yochai Benkler — Professor at Harvard’s Berkman Center
• Lizz Winstead — Co-creator of The Daily Show and Shoot the Messenger
• Christopher Blizzard — Director of Evangelism at Mozilla Corporation
• Nina Paley — Creator/Director of Sita Sings the Blues
• Josh Silver — Executive Director of Free Press
• Corynne McSherry — Attorney at EFF
• Xeni Jardin — Co-editor of Boing Boing
• Ted Hope — Film Producer (of nearly sixty features including 21 Grams and most recently Adventureland)
• Avner Ronen — CEO at Boxee
• Eclectic Method — Live Video Remix DJs
• Jason Wishnow — Video Director of the TED Conference
• Lauren Cornell — Executive Director of Rhizome and Adjunct Curator at the New Museum
• Nikhil Chandhok — Senior Product Manager, YouTube
• Anthony Falzone — Executive Director of the Fair Use Project at Stanford Law School
• Mohamed Nanabhay — Head of New Media at Al Jazeera
• Matt Mason — Author of the Pirate’s Dilemma
• Sam Gregory — Program Director of WITNESS
• Jon Lech Johansen, aka DVD Jon — Founder of doubleTwist
• Jonathan McIntosh — Video Remixer and Activist
• Jamie King — Director of Steal this Film I and II
• Melinda Lee — Chief Content Officer of Uncensored Interview
• Eyebeam — Kenseth Armstead, Jon Cohrs, Jeff Crouse, and Michael Mandiberg
• Lance Weiler — Filmmaker and Co-founder of WorkBook Project
• Mark Surman — Executive Director of the Mozilla Foundation
• Mike Hudack — CEO of blip.tv
• Eirik Solheim — Project Manager at NRK (Norway’s Public Broadcaster)
• Peter Kaufman — Executive Director, Intelligent Television
• Jack Brighton — WILL Public Media
• Ryanne Hodson & Jay Dedman — RyanIsHungry.com, Video Activists
• Mark Tribe — Artist and Professor at Brown University
• Neil Sieling — Media Fellow at American U’s Center for Social Media
• Sumner Paine — Product Manager Adobe Media Player, Adobe Systems
• Tracey Jaquith — Web Engineer for Archive.org
• Henrik Moltke — Director of Good Copy Bad Copy
• Brett Gaylor — Director of RiP: A Remix Manifesto

Jean Burgess of Australia’s Queensland University of Technology visited Yale Law School to present at the ISP’s weekly speaker series.

Together with Joshua Green of MIT, she is editor of YouTube: Online Video and Participatory Culture. The book is due for release May 26, 2009; we were treated to a sneak preview of its findings.

Dr. Burgess’ presentation connected YouTube’s undetermined and chaotic character to its rise as the preeminent platform for participatory media. Having made itself available and suitable for a wide and relatively unrestricted range of uses, YouTube as a media institution has been co-created by the various institutions and individuals who have put it to use. Through YouTube’s openness and indeterminacy, Internet users have been offered an unprecedented opportunity for the sharing of cultural experience on a global scale.

Burgess and Green undertook an investigation of YouTube’s common culture–the set of norms and practices that have emerged on the young platform. Their investigation began with the site’s most popular, most viewed video content. Roughly half of the content Burgess and Green surveyed were what they classified as “user-generated”, while approximately 42% were classified as “traditional media”  content.

The investigators found, however, that individual users were somewhat of a supermajority of the contributors (uploaders) of the site’s most popular content while traditional media institutions were a small minority of these contributors, suggesting that individual users contribute a substantial amount of the traditional media content. Burgess and Green’s investigation also showed that, while traditional video content was more often “favorited” by users than user-generated content, user-generated videos were more often discussed in text comments and response videos.

The most common type of user-generated content attracting discussion and other interactions on YouTube are video blogs, or “vlogs.” Vlogs are the nuclei of the YouTube community–the nodes in social network that has emerged on the platform. Vloggers participate in and facilitate spirited discussions, invite responses, and thereby draw outsiders into the community developing around them. In this way, YouTube’s vloggers have emerged as homegrown community leaders. The participatory and interactive nature of the culture thriving on YouTube, Dr. Burgess contends, reflects shifts in popular ideas about cultural citizenship, cultural literacy, and the public sphere.

Dr. Burgess challenged the law’s confused treatment of regular users of online content as the end of the consumption chain rather than the beginning of that chain. The view of YouTube as merely a distribution platform for video content is wholly inadequate. Many of the ways in which YouTube is actually being used pose a direct challenge to ideas about cultural production and consumption that currently dominate the law. For more detail, buy the book or read the related paper from QUT’s digital repository.