[IP] more on Tech: A 'hostile environment' for US natives????

[David Farber <dave@farber.net>]

Begin forwarded message:

From: Bob Drzyzgula <bob@drzyzgula.org>
Date: May 8, 2005 8:49:58 PM EDT
To: David Farber <dave@farber.net>
Cc: Ip <ip@v2.listbox.com>
Subject: Re: [IP] more on Tech: A 'hostile environment' for US  
natives????



On Sun, May 08, 2005 at 06:01:29PM -0400, David Farber wrote:

> From: Greg Skinner <gds@best.com>
>
> [for IP]
>
> gep2@terabites.com wrote:
>
>
> > And more to the point... just which professions here in the USA do
> > you feel are NOT going to subjected to this sort of (crushing!!!!)
> > outsourcing pressure? And do you think that the US economy can
> > survive on those alone, whatever few they are?
>
> I don't know much about the fields of medicine or law, but it seems
> that despite people from outside the US being hired to do those type
> of jobs in the US, US doctors and lawyers have not seen the type of
> job losses that US computer professionals have.  A major difference
> between the practice of law and medicine vs. software engineering (for
> example) is that you need to get a license to do the prior two on a
> professional level.

For IP, if you like.

Another difference is that, to a large degree, law and
medicine are much more about providing a direct service
to clients and patients. A significant amount of computer
programming is done for product development, wherein the
output is something that can be packaged up and repeatedly
sol^H^H^H licensed to the general public. Even in the case
of contract programming, the intent often is to create a
program that can repeatedly be used within an organization
and, beyond a certain simple level -- a couple thousand
lines of code, perhaps -- there probably isn't much reason
why the coding itself needs to be done locally.

Medicine and law are much more dependent on personal
contact with each individual patient or client on an
incident-by-incident basis. It's hard to imagine how one
would outsource a pediatrician or neurosurgeon. Radiologists,
perhaps, and we all know that is being done. And medical
tourism is of course a growing industry, but this is more
"foreign competition" than "outsourcing". In law, there is
a great deal of regional specialization, which I suppose --
not that I know much about this -- could make it difficult
to achieve much economy of scale. Perhaps some back-end
legal services -- research, document preparation, etc --
could be outsourced, but I doubt that is where the money
is in the legal profession.

Moreover, I would argue that medicine and law are much more
akin to where the money is supposed to be in open-source
programming: In providing support services, local
customization and implementation, planning, consulting,
etc. While it is perhaps true (and unfortunate) that
some of our elected officials turn a good profit from
making new law under contract to the wealthy, that is
not how it is supposed to work, and certainly once the
law exists there is no money involved [1] in licensing
the law itself. When a lawyer successfully argues a case
in a new way, the legal precedent is simply part of the
record that can be used by everyone; the lawyer (or his
employer) can't expect to buy a new Porsche with royalties
on a patented or copyrighted argument.

The legal profession generally is set up to help people *use*
the law, and most doctors are there to *practice* medicine,
not to create new medicine that can packaged up and sold
to the public [2]. Medicine and the law are simply the
tools that are used by these practitioners to help their
customers, much as open source software is used by large
numbers of programmers and consultants to help theirs. This
sort of one-on-one, case-by-case, personal attention is,
I expect, almost impossible to outsource effectively.

But perhaps I'm just naive.

--Bob Drzyzgula

[1] Yes, there are publishers who make money selling
annotated copies of the law, but it is the annotations they
are selling -- they can't really sell the law itself. Sort
of like Red Hat "selling" Linux.

[2] Historically, when a doctors and medical researchers
report successful new treatments in medical journals,
other doctors have generally been free to use those
treatments. While the report may be copyrighted by the
journal or author, the treatment itself has typically
been considered to be in the public domain. As I
was writing this I discovered that in recent years
there has been some controversy over medical process
patents. Apparently a law was passed in 1997 protecting
doctors against patent infringement claims. From
http://www.physiciansnews.com/law/1097meyers.html

   "Public Law 104-208, signed by President
   Clinton on September 30, 1996, denies
   patent owners the right to enforce patents
   covering medical or surgical procedures
   that do not involve patented drugs or
   devices. Patents on medical and surgical
   procedures performed on a human body,
   organ cadaver, or even on an animal
   used in medical research or instruction
   relating to the treatment of humans, are
   now unenforceable."

I do not know if there has been any back-peddling on this
law, or how it works out in practice. Pharmaceuticals are,
of course, another story.



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