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2020 Holiday reading: Blockchain, AI and the Four Digital Titans

Happy new year everyone. I hope you all had a good vacation with some spare reading time. Over the holidays, I had the pleasure to listen to four audiobooks. It is pretty clear that the next decade is going to be another exciting ride for us tech and IP lawyers.

The first audiobook was Blockchain and the Law: The Rule of Code, written by Primavera De Filippi and Aaron Wright. A lot has been written about blockchain. In this book, the authors not only look at developments, past, present and future, but also provide an ambitious, scholarly, and fact rich analysis of the legal challenges associated with blockchain. The book also has a good description of the technical developments that make blockchain possible such as evolution of P2P networks and public key cryptography.

What especially resonated with me about this book were the analogies drawn between the Internet and blockchain including their distributed nature, potential benefits across spectrums of human activities, how they facilitate new means of contracting (from EDI and online contracts to cybercurrencies and smart contracts), means for disseminating information, challenges to privacy, their uses and potential uses for illegal activities, the backdrop of anachronistic laws that didn’t contemplate the activities they enable (including in the case of blockchain regulation of tokens and other items that are or resemble securities), the disintermediation of traditional providers of goods and services (and the employees of the affected sectors), the territorial and jurisdictional challenges of regulating transnational conduct, and how they both require rethinking the adequacy of existing theories of secondary liability and the roles of information intermediaries in helping to address illegal activities.

The second book I read was an audiobook called Smart Contracts: The Essential Guide to Using Blockchain Smart Contracts for Cryptocurrency Exchange, written by Jeff Reed. This book was at such a high level as to be practically useless. Moreover, its legal analysis was simply wrong in some essential respects. The author, for example, categorically claimed that smart contracts were not legally binding or enforceable, calling their legal validity a “myth”, and claiming this was because there were no laws that specifically made them valid. This view of the law flies in the face of solid legal research such as the opinions expressed by Primavera De Filippi and Aaron Wright in Blockchain and the Law and the recently published UK Jurisdiction Task Force Legal Statement on the Status of Cryptoassets and Smart Contracts. As far as U.S. law is concerned, one would have thought that the author would have at least considered the common law and State laws based on the Uniform Electronic Transactions Act (‘UETA’) and the Electronic Signatures in Global and National Commerce Act (‘ESIGN’) including relevant provisions dealing with contracts formed by electronic agents.

The third audiobook was The Four: The Hidden DNA of Amazon, Apple, Facebook, and Google, written by Scott Galloway. The book is a reminder just how dominant and influential these four companies are, how they got there, and how their competitors struggle. Unsurprisingly, the book highlights the information asymmetry between these companies and their competitors. Like the book Blockchain and the Law, the book provides insights into how algorithms and AI are being used, which in the case of the four US business titans is shaping the information we receive including when we search for products on Amazon or information on Google, or read news on Facebook. The author is a professor of marketing at NYU and uses his expertise to explain how these companies manipulate fundamental emotional needs when targeting their users with messages, such as electronic ads by Amazon and Google for goods or sensational news articles by Facebook. He also has some good insights into how Apple has been successful in positioning itself as a luxury brand and why bricks and mortar stores can buttress e-commerce businesses.

The fourth audiobook was AI Superpowers: China, Silicon Valley, and the New World Order written by Kai-Fu Lee. This book provides insights into how AI applications based on deep learning algorithms are being commercialized at a dizzying pace such as Internet applications (e.g., for online shopping and advertising), business and professional applications (e.g. for financial analysis, business analytics, delivery of health diagnoses), and perceptual applications (e.g. for factory automation and robotics). It also highlights applications in the course of development such as autonomous systems for self driving cars. As well, the book highlights the gigantic lead that the U.S. and China have in AI and how these leads are likely to grow even wider arising from the massive investments in AI applications by seven of the most advanced users of AI, U.S. based Google, Microsoft, Amazon, Facebook, and China’s so called BAT tech giants Baidu, Alibaba, and Tencent, and in the case of China its state plans and investments to dominate the sector. Kai-Fu Lee also examines the key conditions for leadership in AI – expertise in AI, access to data, data, data, and more data, entrepreneurial skills, and government support.

It is hard to imagine what the world will look like at the turn of the next decade. It is not hard to predict, however, that developments in technologies including blockchain and AI will transform our economy, standards of living, and how we interact with each other including commercially, professionally, and socially.

For us tech and IP lawyers, these developments will continue to demand legal services. Obvious candidates for areas of growth are tech/VC/financing, commercial/contracts (including licensing and access to AI tools and datasets, JVs/strategic relationships, structuring and advising on validity of contract/electronic models), privacy compliance (including cross border data transfers and disclosures, obtaining, sharing, and using personal information for deep learning purposes, and maintaining data security), FinTech, competition law, intellectual property law (with so many questions such as whether copyrights or inventions produced with the use of AI are eligible for IP protection, how datasets can be legally accessed and protected) tort law including negligence and product liability, private international law, corporate governance (such as for ethical uses of AI), regulatory compliance, and government relations.

By the way, I did some other stuff on vacation besides reading these books such as snowshoeing (great time to listen to audiobooks), skiing, writing a substantial supplement/update to my book on Computer and e-commerce law, preparing the first lecture for my Osgoode IP law class, helping to close a year end outsourcing agreement, and best of all spending time with family.

Best to everyone for the new year.

Barry Sookman

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