There is a passage in the prologue to Pedro Domingos' fantastic book on machine learning called "The Master Algorithm". It it he outlines a day in the life of the average commuting worker framed by their interaction with an environment rich in learning algorithms1. The startling message of those few pages is not about the wonderful innovations that now support our daily existence but the ever-present and pervasive nature of their reach. Machine learning, and to a much lesser extent artificial intelligence, has well and truly landed. The challenge for lawyers and their clients is how to navigate a legal and regulatory environment that is playing catch up and how to simultaneously steer innovators on a path to protection that may be paved with gaps. Are developers and first movers aware of the present and future challenges with exploiting and protecting their innovations?
It is reasonable to argue that some of the issues arising out of this brave new world are manageable from an existing legal perspective, for instance making the seller of a 3D printer liable for the quality of the products printed. But who should be responsible for using the 3D printer to print a product which is protected by a patent or a design - the consumer who prints the product, and will patent holders realistically sue their consumers, or the person who supplied the design file? And who is responsible if the design file is produced by a machine?
So long as innovative algorithm-based goods and/or services get on to the market and drive revenue back to the innovator without an adverse market reaction should there be a need to query existing legal compliance and/or protection strategies?
Yes. Put simply, it's not smart commercial strategy to dive into a market with an innovative product without understanding the legal risk associated with exploitation as well as being adequately informed on how that innovation can be appropriately protected.
So what does all that mean?
Until recently lawyers could reliably advise on the exploitation of most client technology in the context of a regulatory regime involving a mix of consumer, data privacy and other sector-specific statutes. That would be supported with an IP/technology protection strategy built around a licensing arrangement via a suite of...