John Blomster: Welcome to 红桃视频, a 红桃视频 podcast where we discuss today's biggest legal topics with the law school鈥檚 distinguished guests and experts from around the world. I'm John Blomster. And today we're speaking with Steve Mortinger, associate general counsel and managing attorney in IP law for IBM. Over his past 30 years at IBM, Steve has been a part of some of the biggest advances in technology in the field of intellectual property. Among his many areas of expertise, Steve is a renowned expert on subjects including open-source social media compliance data, and perhaps most impressively, he can explain what blockchain actually is, which we could get into off air if we if we need to. But he recently joined the law school for the special event Open Access to Data and Innovation, the subject of which we'll be talking about today. And we've been really looking forward to the conversation. So, Steve, thank you very much for joining us today.
Steve Mortinger: Thank you. Good to be here.
JB: So, first off, before we get into it, can you just tell us a little bit about your role at IBM as associate general counsel and managing attorney in the field of IP law?
SM: Sure, it's a pretty broad ranging role, but lots of fun things to do. I have a team of 65 attorneys and legal professionals, actually all over the world as far away as China and as close as right next to me here in Armonk, New York. And we support all the brands. Everything that IBM sells, we support. I also have a particular interest in data. That's how I'm involved with this. And just as another hobby, we're working on a spin out right now. And I'm, I'm heavily involved with that as well.
JB: Great. So, before we get too far into it would be great to define some key terms to kind of frame the discussion. So, in the context of today, what are we talking about when we when we say open data? And also in this context, what are we talking about when we're talking about open data licensing?
SM: Sure. So, data can come with a lot of restrictions, a lot of times people ask me questions about privacy, as it relates to data, for example. A lot of those kinds of restrictions make data much more closed. But other ways of keeping data closed are, you know, companies or people or governments that have data that they don't make available to others that they hold on to. There has been a lot of talk of data as sort of the next big natural resource or data as gold. I actually take a slightly different view, even though some of IBM's positions early on, particularly, would have said that. I see thinking about the sort of spinning straw into gold, that analogy. I see data as more like the straw. I mean, it has independent value. But it's really what can be done with data, that is where the value is. And so people, companies, governments that are holding on to data thinking, it's hugely valuable, but I don't really know how to monetize it, or don't know how to make sure I'm getting the value out of it are making a mistake because it gets stale. It doesn't have infinite value. But it also is only valuable when it鈥檚 actually in use and being able to be analyzed for the value that it brings from aggregated analysis of data.
JB: Right. And this topic is particularly important today, given so many different efforts, including the establishing public-private sharing of data, conversations about how we use privately collected data to benefit, you know, the greater good, the greater citizenry. Why have these discussions been accelerating and are so important to be paying attention to?
SM: Well, I think the COVID pandemic has really opened people's eyes to that. For example, many people were calling for, you know, easier drug tests, and maybe reducing some of the restrictions so that drug tests can be done more quickly. If you reel back into how you get to a vaccination, you have to have data, you have to know you know, what it is that's causing a problem, what people's reactions are, and nobody was really looking at, well, how do we get at sort of the root cause of the thing that, you know, will provide us the information we need to have better vaccines. And you're seeing some talk now in Europe about that, about, you know, let's open up data. Let's make data more accessible. Let's figure out how we can manage the privacy restrictions on data or work with data even with the privacy restrictions. But I pity anyone who goes out now to try and clear large quantities of data, particularly if there's patient or medical information, because we did it. It's very difficult, and you know, even as you're going through the process, there are lots of unknowns. You'll see agreements that have one of my favorite provisions, which you'll hear me talk about a lot, if you've listened to other things I've done, where it says, you know, this data is available to you for any non-commercial purpose. Well, what's that? And why is that an important restriction? I mean, it can only be used in charities? Anytime a company uses data, you have to assume it's going to be for commercial purpose, and to address pretty much any of the biggest problems that the world has, you know, people might want to be paid for it. And I don't think that's unreasonable. So, why does everything you know, get limited to non-commercial reasons.
JB: Central to this discussion about data licensing, and addressing some of these questions and issues is a 2017 agreement called the CDLA, the Community Data License Agreement, which you have talked extensively about. What is the agreement? And why was it necessary to develop in regard to handling these increased data licensing needs?
SM: That's a great question. And that's sort of like, you're talking about your children. I was one of the people who helped to draft it. So, I do feel a particular affinity for it. In 2017, well really, reel it back a couple of years. In 2015, clients and governments that I work with started to ask the question, 鈥淗ey, well, if we want to release some data, what would you recommend is the license or the document that we release it under?鈥 And so I started to read the various agreements that were out there at the time. And none of them were inherently bad, but they had problems, like the one I mentioned. It would say, use for any non-commercial purpose, or it wouldn't have anything about, you know, using data for development, developing insights, running AI models. And so there were agreements, but they weren't really purpose built for data. And so I think we kind of got together with the Linux Foundation, and talked and said, 鈥淲hat can we do to help that? And how can we use an open-source software type model to do it?鈥 And so we came up with the CDLA, Community Data License Agreement, as a way to try and address you know, how can we encourage people to put data out? And how can we more standardized the terms that people are getting and giving data under so that, you know, when they pick up this license, they'll know that what's in it is something that is standard and consistent and meets the needs. And so that was the whole purpose of the project. We got a bunch of companies together to work on a drafting committee, and put out two versions. One is a sharing version, which is a bit more like a copyleft. If you republish the data you receive under it, it has to be under the CDLA. And the other is permissive, where you don't have to republish under the CDLA.
JB: So why don't the same agreements that work for software work when applied to data?
SM: Well, they're different things. And so data has a much more sort of lightweight copyright protection to it. It's only in the compilation of data that you have a copyright not in the underlying data. And so you want to at least consider that. It's not coded, you know, and put together in a format in the same form. Sometimes it's pulled together from all kinds of disparate places. And so you want to consider that. But I think most importantly, the two things I mentioned, which is, you know, you want to make sure that you understand how it can be further used. So, software doesn't have this convert, you know, it from one thing to another, to convert from data to insights, as data does. And you want to specifically think about that, because what obligations and rights do you have with the insights that you create from data? And I mentioned before that commercial versus non-commercial, although I don't think you see as much of that and software licenses. So, they're different things. It's sort of like why don't you sell a tractor under an agreement for buying seed? Right? Well, they're both farm related things, but they're not the same thing.
JB: So, I guess backing up when you're talking about a company figuring out how best to release data for use, what are some of the potential uses of data in regard to the public, that benefiting the public and approaching, addressing some of the needs there?
SM: Sure. Well, you know, cities are looking to expand, right? If they make available data on building permits, new sewage lines, new water lines, new traffic patterns that are being developed, new roads, if they make that available, then companies interested in putting in restaurants, daycares, coffee shops, can all avail themselves of that, and be ready there to meet the needs of the citizens early rather than late. And so there was a lot of benefit to people to sharing that type of data. And again, it is commercial, that you can't get, you know, from not having that type of awareness. Likewise, you can take a lot of disparate types of data on weather, historic crop analysis, soil capabilities, etc. And you can, you know, advise farmers as to where best to plant, when best to plant, you know, when does the harvest and just based on historic data. And no single piece of that data does the same thing. I mean, if I know, the average rainfall on June 3, through a decade of days, it doesn't tell me much. But if I can combine that with some of those other elements I was talking about, we start to have some really valuable information.
JB: It really is incredible, the potential and everything that's happening. I mean, it really is an amazing, an amazing field. Anytime we talk about data, you know, the issues of privacy always come up. So, does the CDLA cover privacy? And if not, what does?
SM: Well, so the CDLA specifically says in the FAQ if you're if you have data with privacy issues, it shouldn't be included under this agreement. That's not the purpose of the agreement. And I won't get into specific other agreements. There are ways of doing that involving anonymizing data and sort of taking the elements that might have some particular privacy issues in them out, but I'm not a privacy lawyer. So, I probably foreground malpractice if I try and give you too much advice in that area. But you know, it is obviously harder, where there's a lot of personal data involved. That doesn't mean that data isn't important. In fact, as I mentioned on the COVID, you know, analysis, some of that data is the most important data to have, but also the one with the most hurdles to get
JB: When it comes to figuring out data licensing agreements, and how this is evolving, you know, even so rapidly now, what did we learn from software licensing and the proliferation of agreements that really exploded, some of which that we spoke about previously, that could apparently get a beer bought for you? Which is pretty interesting. And how can we, I guess, guard against some of the issues that we ran into with the proliferation of software agreements?
SM: So, I think, you know, back to the concept of what is open data, one of our speakers in the session last night was talking about Richard Stallman from the GNU Project, Free Software Foundation. And he liked to say, when he was talking about free software that he was talking about free, like liberty, not free like beer. And I think that's what we're talking about with data as well. I don't have a problem with people being able to, you know, charge for the work they put into creating data. But certainly, you know, you don't want data to be dead ended. And as we grow with the number of agreements there are that deal with data. The problem is, the more opportunities there are for people to create some crazy terms and conditions that may not work well attempts to reduce the number of open source software agreements that the Open Source Initiative has undertaken. I think there are still 70 open-source software licenses at least now. That's a lot. And you know, there might be an argument for a handful, maybe even two handfuls. 70? That seems like an awful lot of agreements. And there must be a lot of crazy things being addressed.
The example that I gave you the other day was, you know, being a lawyer who supported teams doing software, open-source software work, they would bring me sort of the oddball terms and conditions they would see. And you know, they would have things like, if you ever meet the software developer, you agree to buy him or her a beer. And they come to me and say, 鈥淐an we agree to this term and condition?鈥 It's like, okay, just have the money ready to buy him a beer, if you ever had them knock on your door, I'm fine with it. And there would be ones, sort of the old Google expression, some of them had provisions in it that said, you can use this software, you know, anytime you want, any way you want, as long as you commit that you will use it only for good and never for evil. And my clients would come to me and say, 鈥淐an we agree to this?鈥 And it's like, well, what do you plan to do with the software?
JB: Like if you have to, if you have to ask it raises some flags.
SM: Right, right.
JB: What are some of the challenges that need to be addressed in terms of data availability, like you mentioned towards the top, if we are truly trying to fulfill that mission of leveraging data for public good?
SM: Right. I mean, I think, you know, first off, companies and governments need to really consider why they aren't releasing certain types of data. And if they don't have a reason, other than maybe the hope that there's a lot of money to be made for selling it, at some point, I would really ask them to reconsider that because again, the value is in using the data. And they'll find that as well. I mean, it really, the more that the data is opened up, the more there's opportunity for value. And the next thing in terms of when data is opened up, I've talked about a couple of things that are impediments, another one, you know, we oftentimes when you'll see governmental mandates to make data available, it might be available, but it might not be usable. And what do I mean by that? We've talked about some of the issues with privacy, you know, questions. Another is, you know, companies, or governmental entities might put up data, but put it up under agreements that are so horrible, that, you know, it's available, but it's not usable, because it has terms and conditions that, you know, basically say nobody can use it for anything. And I guess the last is format. I know format is probably the least sexy thing to be talking about. But you know, a standardization of formats so that when people put up data, it's in a form that can be easily pulled down and used. For example, PDF files, not good. They are not usable. So, you know, if we put up data in ways that it can be readily accessed and readily used, that's all the better.
JB: So, as we're looking toward the end of the pandemic, and beyond, what should we be paying attention to right now in the space when it comes to data and the evolution of how we approach licensing and use?
SM: Well, I'm watching Europe, and again, I'm not a privacy lawyer, but they really are considering some creative things about how to make, you know, data available, even data with privacy restrictions. Make it available in sort of a commons, but, you know, still accommodate, you know, some of the concerns about privacy. So, we're not violating people's privacy rights, but still having the ability to use anonymized aggregated data in ways that benefits the public.
I think I've mentioned before, and I'm sure others have as well, people will readily click through and give away personal information to watch a video of a cat playing with a ball of yarn. They will. And somehow we aren't given the opportunity if I, for example, let's say I'm okay with people using my personal information, if it helps to develop a COVID vaccine. Why isn't there a way that people can say I'd like to opt in for this limited purpose to allowing certain amounts of my data, and maybe we can even specify what that is to be used? If there are ways that enable people to, you know, allow data to be used for the public good. Seems to me that's more of a priority to me than you know, watching a video of a kitten. Although fun, it's probably not at the same level of importance. But you know, I have the option to figure out if I want to get my data, my personal information away for that. But I don't have an option to figure out how to get my personal information away in a controlled way for the public good.
JB: I mean, watching a cat playing with a ball of yarn. I mean, who doesn't love that stuff?
SM: Yeah, good stuff.
JB: Finally, for the law students, among our listeners, what would be your pitch for why intellectual property, and especially in this context, is a field that they should be strongly considering being a part of?
SM: Well, it is clearly the future. I mean, there's no doubt that a lot of the problems we're trying to solve in the world, you know, have a strong element of intellectual property to them. It has the opportunity to deal with, you know, things like AI. Things like data. There's patents, there's really never a dull, dull moment. It's a great profession. It's certainly one where I think there's a lot of opportunity to be involved with some of the most interesting things you can imagine.
JB: Steve Mortinger is associate general counsel and managing attorney in intellectual property law for IBM. He recently joined the law school for a special event focused on what we spoke about today, Open Access to Data and Innovation. You can find more links to today's topic over on our podcast page at law.uw.edu.
Steve, thank you so much for taking the time. This was a lot of fun.
SM: Thanks. It's been fun.
