People who wish to honor Senator Kennedy are urged to line the motorcade route at the Rose Fitzgerald Kennedy Greenway, City Hall Plaza and the Boston Common, in front of the Statehouse on Park Street.  BRING SIGNS IF YOU HAVE THEM. I’m sure that it would be appreciated if there is a good crowd on the motorcade route. Please forward this message.

When a software patent application is filed, 18 months later it is made public. Typically this is 2 years before the application will even be considered by a patent examiner.  This means that ideas are in the public sphere, the commons, for all to learn from well before any property rights have even begun to be considered for the inventor.

Most patents are rejected by the patent office.  Months ensue, and typically if any patent is attained it is for a much narrower scope than originally asked for by the inventor.  Meanwhile the key ideas have now been in the public domain for typically about 5 years–all the time fueling innovation.

Patents drive innovation because they spur inventors to try to work around and improve existing technology.  Unpatented ideas often become the basis for popularization only because they are free, and thus stifle innovation.

Consider an analogous case from another field: Why do you think the King James Bible is the most published?  Is it the most current or accurate or scholarly?  No.  Hardly.  The King James is long out of copyright. Publishers make high profits from publishing and promoting it.

Why is Apache the widest used web server?  Is it the best possible web server? No.  Hardly. It is the cheapest.

Same with Linux.  What is Linux, but a clone of Unix.  A commodity. Why is it popular? Because it is best? No. Because it is cheapest.

Have Apache and Linux spurred innnovation in operating systems? No, they have dampened innovation by making it nearly impossible for any company to make money in operating systems, and thus afford R&D investment.  Sun was the company innovating in the Unix tradition. What has happened to Sun?  It has been wiped out by Linux-based competitors, and become a notably unsuccessful and non-innovative open source company.  When is the last time you looked to Sun for leading edge innovation?  In the late 80s, before the commoditization of Unix/Linux.

Ironically, the best spur to innovation in operating systems is Microsoft Windows. Why?  Because customers are willing to pay to use it, and thus prospective competitors know they might be able to sell an innovative contender.  Who has taken advantage of the Microsoft Windows opportunity?  Apple, by investing R&D in a highly innovative advanced version of the Unix/Mach lineage, building on user interface ideas from Xerox PARC innovation.  Who has the best operating system for small computers?  Apple.

Thomas Jefferson invented the American patent system as a way to provide incentives to inventors to open up their trade secrets.  The quid pro quo was that inventors who would share their ideas got a limited-time property right to their inventions.  This has worked brilliantly in the US for 200 years.

Don’t believe the anti-patent PR. Note what companies are behind it:  IBM, with control of 45,000 patents, including 37000 directly owned in its name, and 3000 patents filed newly each year.  And Intel, whose CFO coined the term “patent troll.”  The celebrity lawyers who argue against patents, such as Larry Lessig, work for centers funded by IBM and other large patent holders.  These lawyers are not, notably technologists.  By contrast, look to real, pioneering technologists, such as Bill Joy or Danny Hillis. They are, wisely I think, supporters of patents.  Hmmm.  Think about it.

Cloud computing + law = Cloudlaw.  

How many bars of law do you have right now?  Five bars? Check your cell phone.

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I am going to use this page and this post to develop and share my  thinking about Cloudlaw.

Cloudlaw as a concept emerged out of discussions among me, John Clippinger (author of Crowd of One) and Oliver Goodenough (co-author of Law and the Brain) of the Harvard Law Lab, starting in December of 2008.  I coined the term, but only as a generalization of and catch phrase for a deep body of insights being nurtured in a milieu that included not only John and Oliver but David Johnson (of NYU Law School) and Peter Early, a practicing business lawyer in Vermont.  The inspiration for the concept grows out of the virtual corporation work started last year in Vermont and resulting in the passage of a number of important state laws enabling the formation of fully virtual companies incorporate in Vermont.

Today deeply engaged in the Cloudlaw project prototype website.  Meeting with Oliver in a few moments.  Working on technology strategy for iCard support, for secure conversations, other technical issues required for our work with the State of Vermont on the formation of digital companies.  Are these nuts and bolts part of the emergence of “cloud business law”

Initially the vision of the Vermont project is to support entrepreneurs.  The Kauffman Foundation is funding the project. Cloudlaw is dedicated to providing the benefits of effective, efficient law to people no matter who they are and where they live.  

1. Forming a corporation, making a contract, starting a company is difficult in many countries
2. In many cases, what is missing is “rule of law” that permits small businesses to be easily created, and to thrive
3. Just as cloud computing benefits people no matter where they live, so cloud law can do the same
4. We are working with the State of Vermont to register new forms of corporations that exist primarily online, but can conduct activities anywhere
5. Today, web services come with your cell phone, anywhere you are. Soon we can ask: How many bars of law do you have? Let’s make a company!

Who else can benefit from services provided by Cloudlaw?

A vast array of services are available to citizens through mobile phones and provided “in the cloud” managed invisibly and seamlessly on their behalf.  Moreover, cloud computing makes possible linking together individuals into social networks and enables new forms of communities and organizations.

As someone who is active in the protection of human rights, I wonder what we might invent under the rubric of “cloud human rights law”.  Can cloudlaw serve the people of Sudan and Darfur? What would be the steps to doing so?  What can we learn from the notion of cloud services that would help us make better interventions to protect and nurture people in terrible situations at the fringe of world society?

How might we creatively think about this problem?  People depend upon the protection of the law at all times.  Human rights, freedom to think, worship, dream and hope are enabled by a rich fabric of laws, well-designed legal systems with educated and wise leaders, and a sense of respect and trust among citizens.  We take for granted the system when it works, which is an indication of how fundamentally important it is.  When it breaks down however we sense its absense acutely.

When effective, the law can be an embodiment of love, care and protection.  Lawyers sometimes speak of “the light of the law” as a kind of invisible force field within which people confidently form relationships among each other.  It is an invisible networks of ideas, rules and practices that reinforce our native sense of fairness and reciprocity and trust and security.

It is interesting to consider:  What are the ideas that we might want to use cloud services to spread, and around which we might create cloud communities?  What rules and practices do we want to establish, both online and offline, so that our cloud activities themselves are consistent with our values and vision?  How do we get a start?  How do we determine what cloud services might be helpful at the far end of our network, in the sands of Darfur?  What cloud service access devices and methods will work?  What cultural and social and professional patterns will we become involved in?

Some interesting work along these lines is Gillian Hadfield’s on “Law for a Flat World”. 

I like to think of what is needed in terms of the love that parents feel for children.  The love and care we feel for our children can and must extend to all persons and all creatures of our planet. Cloudlaw might help.

Fred’s prescription is exactly what the economics of innovation would tell us:  In a collapsing business ecosystem, the whole is not worth more than the sum of the parts.  The whole is worthless.  The sum of the parts is worthless.  SOME of the parts may be worth SOMETHING.  The way to determine if a part is worth something is to see if someone sees enough value to be willing to buy it.  Maybe Donald Trump wants the GM building in Detroit.  Or not.  Maybe Toyota wants volt–or not.  See enthusiastic support on Twitter here.

What is powerful about this solution is that it makes the breaking up and reconnecting of the ecosystem tractable.  And the pieces are selected for their value to a future that actual entrepreneurial leaders believe in enough to fund THEMSELVES and to try to accomplish through their own efforts.

The nation still has the problem of how to stabilize Detroit.  The collapse of GM, Ford and Chrysler will be an economic Katrina for people in the city.  On the other hand, perhaps better to rebuild Detroit directly.  1.  Encourage new, viable future-focused transportation companies (see Fred’s suggestion above and below).  2.  Encourage suppliers who can survive to grow within the new economic ecosystem that will be led by the new lead companies.  3.  Negotiate mortgage payment holidays to keep people in homes and to stabilize neighborhoods.  This is philosophically similar to how student loans do not have to be paid down while students are still in school.  Detroit will be in school. 4.  Tap into the strike funds, layoff funds, and possibly the pension funds of the unions to provide pay for workers.  Insist on a kind of “workfare” and have folks work on infrastructure, policing, schools and education.

Now that I think about it, an economic Katrina has ALREADY happened to Detroit–a slow, multi-year Katrina.  No bailout can change this fact.  Indeed, just as an actual bucket-brigade  “bailout” of the water in New Orleans would have been obviously futile, so a financial bailout of the auto makers is futile.  What we face is a rebuild. Let’s rebuild something worthwhile, something that is part of a future we can embrace and be proud of.

Here below is Fred’s terrifically clear suggestion. Click the link to read the whole thing:

Bust-Up, Not Bailout – Seeking Alpha
‘Bust-up, not bailout’ should be our rallying cry. Once upon a time busting up big companies was a populist movement. It’s time for that movement to rise up again. Not so much to rid our society of monopolies, but to rid our society of financial minefields that are ‘too big to fail’. I read a quote on twitter yesterday that said ‘too big to fail means too big to exist’.

And yet the government’s answer to our problems is to push for more consolidation. It’s nutty. Scale and complexity are the enemy of innovation and what ails most of the large businesses in this country, auto in particular, is a structural lack of innovation in the industry architecture.

It takes something like five years to get a new car designed and built in most large auto companies. That’s too long. I realize that designing and building a new car platform is not like hacking up a new web app. But five years? C’mon We have to do better than that.

And we need to completely neuter the auto industry’s ability to lobby our government to stop important initiatives like clean/alt energy and mass transit. It’s borderline criminal what the auto industry’s political efforts have done to our global competitive position right now.

The same is true of the financial services business, the airline business, electric utilities, and a host of other industries.

I am sympathetic to the argument that we cannot allow the entire supply chain of the auto industry to fail and I am certainly aware of how many plants will close and jobs will be lost if we let General Motors GM, Chrysler, and Ford F fail. It’s a tough call and Obama has already staked out a pro bailout auto position.

So I hope someone from his incoming team reads this and the conversations on this topic that went on via twitter yesterday. If we give taxpayer money to the auto business, it should be to finance a wholesale bust-up of the business. One PE firm should buy Volt. Another should buy Buick. A third should buy Jeep. A fourth should buy Lincoln. And if a brand can’t find a buyer at any price with a boatload of taxpayer money behind it, then it should fail.

Kennedy said he hoped there would be a big turnout for yesterday’s state primary races.

“I get lumped up every time I see him,” said Shirley Clark of Hyannis, leaning on her cane as she watched Kennedy and his wife step into the elevator she had just exited.

Kennedy smiled at her, touched her arm and said, “I like your sticker,” with a nod of acknowledgment for the “I voted” sticker affixed to the front of her sweater.

“He’s such a great guy. He always says hello, always makes you feel like someone special,” Clark said as the elevator doors closed.

Kennedy entered through a basement door used by voters familiar with town hall.

On the second floor, where voters from precincts 9 and 13 cast their ballots, there was a veritable receiving line of area residents, most of whom smiled broadly when they saw Kennedy and his wife come into the room set aside for voting.

Like any other voters, the Kennedys leaned toward poll clerks seated behind a table and announced their names. The clerks in turn checked the names against the list of registered voters.

Kennedy shook hands, thanked people for their support and, once or twice, ran a hand through his trademark thick white hair.

Visible through that hair on the back of his head was a small scar from the surgery he underwent over the summer when doctors removed a brain tumor.

Kennedy has been recuperating on the Cape and sailing just about every day.