Hrdy and Brean on Testing the Gernsback Hypothesis: Science Fiction's Influence on Patents and Innovation

Camilla Alexandra Hrdy, Rutgers Law School; Yale University Information Society Project, and Daniel Harris Brean, Senior In-House Intellectual Property Counsel, Respiratory Care, Philips; Intellectual Property Expert in Residence, Duquesne University Kline School of Law, are publishing Testing the Gernsback Hypothesis: Science Fiction's Influence on Patents and Innovation in the 2025 Symposium Issue of the Houston Law Review. Here is the abstract.

A common thesis in the science fiction community is that science fiction has an impact on innovation because it inspires readers and even professional scientists to perfect and put into practice the inventions they learn about through science fiction. We call this the "Gernsback hypothesis," because it was posited most clearly by the science fiction editor and inventor, Hugo Gernsback. This paper reveals that patents provide an invaluable source of information for testing the Gernsback hypothesis. It explains several approaches for using patents to test whether, and how, science fiction influences inventors. It reveals the strengths and weaknesses of these approaches. This paper should be of particular interest today, when powerful tech moguls admit that science fiction deeply influenced their pursuits, from artificial intelligence, to virtual reality, to space travel. It would be helpful to gain a more precise lens into how science fiction affects inventors. Patents could provide a resource for gaining insights into this process.

Download the article from SSRN at the link.

McCaffrey and Dorobat on First Principles on the Final Frontier: Economic Foundations of Science Fiction

Matthew McCaffrey, University of Manchester, Manchester Business School, and Carmen-Elena Dorobat, Manchester Business School, Strategy Enterprise and Sustainbility, have published First Principles on the Final Frontier: Economic Foundations of Science Fiction Television. Here is the abstract.

Paul Cantor pioneered the use of Austrian economics in literary criticism, showing not only how sound economic reasoning can be used to interpret literary texts, but also how it helps us to appreciate such texts as celebrations of commercial culture. To honor Cantor's work, in this chapter we apply some fundamental economic principles to boldly go where no one has gone before: modern science fiction. We explore several ways in which sci-fi television shows spanning several decades—such as Battlestar Galactica and The Expanse, as well as Star Trek: The Next Generation, Firefly, and Andor—incorporate economic principles and use them as sources of dramatic tension. These principles include scarcity, division of labor and autarky, trade and prices, protectionism and war, and the role of international (or perhaps, interstellar) organizations in promoting peace and prosperity.

Download the article from SSRN at the link.

ICYMI: Contreras on Science Fiction and the Law: A New Wigmorian Bibliography @contreraslegals @sjquinney

ICYMI: Jorge L. Contreras, University of Utah College of Law, has published Science Fiction and the Law: A New Wigmorian Bibliography at 13 Harvard J. Sports & Ent. L. 63 (2022).

In 1908, Dean John Henry Wigmore compiled a list of novels that no lawyer could afford to ignore. Wigmore’s list, taken up by Professor Richard Weisberg in the 1970s, catalogs one hundred literary works from Antigone to Native Son, each of which offers insight into the legal system or the practice of law. This article undertakes a similar bibliographic exercise with respect to law and the literature of science fiction. While science fiction, as a literary genre, has its detractors, it cannot be denied that science fiction stories – whether in books, short stories, films or television shows – reach a vast audience and, for better or worse, influence popular perceptions and understanding of science and technology issues. This has been the case since the days of Jules Verne and H.G. Wells, but is especially true today. When we talk about genetic engineering, Brave New World, Gattaca and Jurassic Park are invariably mentioned. When we think about artificial intelligence, HAL, Skynet and other fictional depictions immediately come to mind. The surveillance society? Nineteen Eighty-Four, of course. These speculative fiction accounts inform the background intuition of judges, legislators and citizens when confronting novel legal issues that arise due to technological change. As such, it is important to understand the body of literature that forms these background intuitions. Accordingly, this article offers the first curated and categorized list of legal science fiction literature, following the model of Wigmore and Weisberg. It is classified according to doctrinal themes, and also includes a compilation of academic literature addressing issues of law in science fiction. It is hoped that the materials compiled here will serve as a useful resource for legal practitioners, policy makers and educators as they grapple with ever increasing legal challenges brought about by the rapid evolution of science and technology. [This is a draft - suggestions, comments and corrections are welcome]

Download the article from SSRN at the link.

Hrdy and Brean on The Patent Law Origins of Science Fiction @CamillaHrdy @AkronLaw

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project, and Daniel Harris Brean, Independent Scholar, have published The Patent Law Origins of Science Fiction.

This article uncovers the role of patents and patent law in shaping the literary genre of science fiction. Using unpublished primary sources, the article examines the views of Hugo Gernsback, the so-called “father” of science fiction. Gernsback, who was himself an inventor and frequent patentee, is known for his firm conviction that works of science fiction can give rise to the technologies of the future. This article reveals that, in espousing this thesis, Gernsback drew an explicit analogy between the inventions described in science fiction and the inventions described in patents. The culmination of Gernsback's theory was his proposal, in 1952, that “Provisional Patents” should be available for “feasible and technically sound” inventions depicted in works of science fiction—even if they were not yet possible to implement in practice. The history of patent law’s role in shaping science fiction has been largely ignored, or derided, by the science fiction community. It is wholly unknown to the patent law community. Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy. But investigating Gernsback’s views, and understanding his justifications for them, generates many surprising insights about patent law and policy, and about the genre of science fiction itself. Science fiction’s patent law origin provides a new and different justification for science fiction’s role in society. According to Gernsback, and other adherents of his philosophy like Arthur C. Clarke, science fiction is not just a form of entertainment. It is a legitimate component of innovation policy. Without science fiction, society would not have many of the innovations that surround us today—or at least would not have obtained them so quickly. This is extremely similar to the role that many commentators ascribe to patents. Gernsback’s philosophy of science fiction may seem naïve. But these beliefs, and their underlying reliance on patent theory, were nonetheless highly influential. They shaped the genre of science fiction as we know it. The patent law community, and not just those of us who are science fiction fans, also has a lot to learn from Gernsback’s views. The historical connection between science fiction and patent law forces us to take a hard look at one of patent law’s most deeply-held principles—that patents are only available for inventions that are currently possible. On the one hand, Gernsback’s extreme position reaffirms why this principle is important. It should not be easy to control the future. The law wisely incorporates doctrines that make it hard to patent inventions that are still so many years away that we call them mere science fiction. At the same time, however, Gernsback’s insistence that science fiction is important for innovation sheds light on the countless “non-enabled,” totally “incredible” visions of the future that patent law leaves out. Science fictional inventions, precisely because they are not yet possible, can impart useful information, and inspire future inventors, in ways that patents cannot. One of the most important differences between science fiction and patents, in fact, is that people actually read science fiction, and are deeply moved by it. Gernsback, as usual, put it best. Science fiction imparts “knowledge, and even inspiration, without once making us aware that we are being taught.” It “fires the reader’s imagination more perhaps than anything else of which we know.” Very few people can say that about reading patents. This matters. If Gernsback was right—and as we show, in some cases he certainly was—then science fiction has inspired some of the inventions we have today. And it did so precisely because it failed patent law requirements like enablement and operable utility, describing inventions which the author could imagine but had no idea how to put into practice. We cannot perform a meaningful empirical assessment of science fiction’s impact on innovation. But we do have evidence that some inventions, and many patents, were influenced to some degree by science fiction.

Download the article from SSRN at the link.

Christopher Brown on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, University of Montreal School of Law, November 11, 2021 https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination https://www.cyberjustice.ca/2021/10/25/the-boarders-of-utopia-science-fiction-and-the-limits-of-the-legal-imagination @NB_Chris @CyberjusticeLab @droitumontreal

 On November 11, 2021, Christopher Brown, Philip K. Dick, John W. Campbell, and World Fantasy Ward-nominated author of Tropic of Kansas, Rule of Capture, and Failed State, will be speaking on The Borders of Utopia: Science Fiction and the Limits of the Legal Imagination, November 11, 2021 at 4:30 (EST), at the Cyberjustice Lab, University of Montreal School of Law.

More here. 

Marinotti and Lubin on The Law of the Upload @JoaoMarinotti @AsafLubin

João Marinotti, Center for Law, Society and Culture, Indiana University Maurer School of Law; Information Society Project, Yale Law School; Center for Intellectual Property Research, Indiana University Maurer School of Law; The City University of New York - The Graduate Center, City University of New York, and Asaf Lubin, Indiana University Maurer School of Law; Berkman Klein Center for Internet & Society; Yale University - Information Society Project; Federmann Cybersecurity Center, Hebrew University of Jerusalem Faculty of Law have published The Law of the Upload as Indiana Legal Studies Research Paper No. 451. Here is the abstract.

In April 2020, Amazon released a new comedy series called “Upload.” The show extrapolates a future in which human consciousness is successfully simulated in silico. In this world, individuals can pay to be “uploaded” into a series of competing digital afterlives. When uploaded, human consciousness is converted into data and executable code, which can be edited, reset, throttled, or even deleted depending on each upload’s membership plan and payment status. The show breaks the boundaries between reality and virtual reality, consciousness and artificial intelligence, and even life and afterlife, entangling various legal questions in novel ways. By addressing three of these legal issues, we hope to highlight how science fiction may help launch a more nuanced conversation about what is artificial in artificial intelligence, what is virtual in virtual reality, and what is digital in digital rights. We argue that becoming early adopters of a new reconceptualized language around “us” and “them”, the “self” and the “other,” can perhaps future proof our society from the technological perils that await us.

Download the paper from SSRN at the link.

Hrdy and Brean on Enabling Science Fiction @CamillaHrdy @AkronLaw @yaleisp

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project; and Daniel Harris Brean are publishing Enabling Science Fiction in the Michigan Telecommunications and Technology Law Review, Science Fiction and the Law Symposium Issue (2021). Here is the abstract.

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor can actually describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair coots, that are not suitable for the patent system. This Essay argues that, in fact, the literary genre of science fiction has its own unique—albeit far laxer—enablement requirement. Since the genre’s origins, fans have demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand- waving or, worse, “mere fantasy.” Taking this insight further, the Essay argues that, just as patents positively affect the progress of science and technology by teaching others how to make and use real inventions, so too can science fiction, by stimulating scientists’ imagination about what sorts of technologies might one day be possible. Thus, like patents, science fiction can have real world impacts for the development of science and technology. Indeed, the Essay reveals that this trajectory—from science fiction to science reality—can be seen in the patent record itself, with several famous patents tracing their origins to works of science fiction.

Download the article from SSRN at the link.

Governing Mars: Real Ideas and Fictional Schemes @megogieblyn

Meghan O'Gieblyn discusses how we are currently debating the potential governing of Mars, now that colonizing that planet is a real possibility, and how writers and philosophers used to think about the subject, when it was just a dream. At the Paris Review, link here.

Michaels on Abstract Innovation, Virtual Ideas, and Artificial Legal Thought @UHLAW

Andrew C. Michaels, University of Houston Law Center, is publishing Abstract Innovation, Virtual Ideas, and Artificial Legal Thought in volume 14 of the Maryland Journal of Business & Technology Law. Here is the abstract.

In a culture of tech-triumphalism, it is often assumed that advances in technology are "making the world a better place," though in reality technology can have both positive and negative effects. This article explores how technology could change the way we think (or don't think) about law, and whether such changes would be beneficial. Part I uses the novel Ready Player One to consider how virtual reality technology might distract people from reality. Considering a hypothetical patent on a virtual reality idea from the novel, Part II discusses the evolving law of patentable subject matter and abstract ideas. Part III considers predictions that legal thought of the type done in the previous part will become automated, and then considers some potential drawbacks of replacing human legal thought with artificial legal thought. The article concludes by questioning whether anyone will be thinking about law in the future, and whether it matters.

Download the article from SSRN at the link.

Rise of the Automatons, A Savannah Law Review Symposium Issue, Now Available @SavLawRev @WendellWallach @brianlfrye @cybersimplesec @CGIntelligence

Rise of the Automatons, symposium issue of the Savannah Law Review, is available on the Law Review's website. Among the articles to peruse:

Wendell Wallach, Rise of the Automatons

Brian L. Frye, The Lion, the Bat & the Thermostat: Metaphors on Consciousness

Christine A. Corcos, "I Am the Master": Some Popular Culture Images of AI in Humanity's Courtroom

Jason Zenor, Endowed By Their Creator With Certain Unalienable Rights: The Future Rise of Civil Rights For Artificial Intelligence?

Jeffrey M. Lipshaw, Halting, Intuition, and Action: Alan Turing and the Theoretical Constraints on AI-Lawyering

Charlotte A. Tschider, Deus ex Machina: Regulating Cybersecurity and Artificial Intellgience For Patients of the Future

Philip Segal, Legal Jobs in the Age of Artificial Intelligence: Moving From Today's Limited Universe of Data Toward the Great Beyond

Kieran Tranter, Living in Technical Legality: Science Fiction and Law as Technology (Edinburgh University Press, 2018)

New from Kieran Tranter, Griffith University Law School:

Kieran Tranter, Living in Technical Legality: Science Fiction and Law as Technology (Edinburgh University Press, 2018).

What if this is not the end? This is the question that is pursued in my new book Living in Technical Legality (Edinburgh University Press, 2018). Many feel very insecure about the future due to rapid technological change. News feeds scroll to suggest that humans as a species are facing a degraded future; a future of uncertain employment, automation, and increased surveillance. In this book I try to tell a different story; a more hopeful story about human futures. I do so through science fiction. Science fiction is the place where technological beings dream themselves, their society and its future. This is why science fiction references accompanies public discussions about disruptive technologies. It also explains the popularity of science fiction within mainstream contemporary culture, with it grounding for much in the way of franchised cinema and digital gaming. So what happens if science fiction is taken seriously? Science fiction shows humans and related entities living, striving and failing with and through technology. It broadcasts that to be human is to be fundamentally engaged with technology. Whether humans were always so entwined with technology is a moot point. Some identify the palaeolithic emergence of tools and language as the decisive turn to technology. In this story humans as a species have evolved as technological beings. Others blame the classical Greek philosophers who set up the intellectual resources to count, theorise and reconstruct the world. Science fiction reinforces the suggestion that human life, autonomy and responsibility has been mediated by and through technology for a very long time. If there ever was an ‘end’ to some pre-technological sense of the human, it must have happened a long, long time ago. Nevertheless, life and living has endured after the supposed apocalypse. Humans have, and do, find meaning and worth in the technological world. So the question becomes how can a meaningful and worthwhile life be lived in the technological world? The first is to establish what does it mean to be a technological being? The second is how can that technological being live a worthwhile life? Science fiction has a role in imaging responses to both of these. Science fiction imagines technological beings as nodes within networks. It is a location where networks constrain, but also empower, doing in the world. The being that convention calls the ‘human’ is a hybrid entity composed of biology and culture that changes as it moves through time. The human as a technological being is a fluxing node where multiple networks meet. This can be terrifying. There are two dangers. The first is of over-determination. That the node in the network is pre-programmed. There is no choice of action, everything is set by the wider context so that there is no scope for discrete, purposeful doing in the world: ‘The computer says no’. However, this is not entirely true. While it total freedom of choice is illusionary, there is always a form of structured agency. The idea of ‘structured agency’ opens to the second terrifying danger; that its exercise is a value-free zone where any choice is equality valid. However, as nodes in the network there is a tendency to connection. In this there can be seen responsibility to the becoming of the world. For some this is expressed in terms of making the world more complex. For others there is a tangible sense of connection that can be nurtured and developed. It is this sense of responsibility that should inform the exercise of the structured agency available to technological beings on how to live a worthwhile life. In the book I examine three specific node locations (the legal subject, the lawyers and the scholar) for the exercise of responsibility to the becoming of the world through an intertwined reading with specific science fictions. In the chapter on the legal subject, Octavia E Butlers Xenogenesis story is discussed. This fantastic trilogy of novels from the late 1980s explores the limits and possibilities of action in a colonised, biological over-determined space. The struggles and partial victories of each of the novel’s protagonists show how to exercise structured agency in the personal, intimate and every-day. In short this is not the end; notwithstanding ever present anxieties about technological futures. But there is a need to let go of older forms of thought. To live well with technology involves embracing the science fictionality of the present. Rather than passively deferring to the machines that are making the world, it involves the seeing and seizing the opportunities for making a difference.

Kieran Tranter Griffith Law School Australia

van Geffen on Gender and Racial Identity in the Star Trek Universe @hannaaahhxx @UniLeiden

Hannah van Geffen has published Gender and Racial Identity in Star Trek; Star Trek: The Next Generation, and Star Trek: Discovery (Master's thesis, University of Leiden, 2018).

Tranter on Envisioning and Programming Digital Legality From SyFy's Caprica @GriffLawSchool

Kieran Mark Tranter, Griffith Law School, is publishing I, Archive: Envisioning and Programming Digital Legality from SyFy's Caprica in Envisioning Legality: Law, Culture and Representation (Tim Peters and Karen Grawley, eds., Routledge, 2018). Here is the abstract.

This chapter charts the demise of the paper archival system of modern law and envisions the key features of its digital successor through SyFy’s short-lived TV show Caprica. Having shown the features of digital legality as inhuman speed, autonomy and hybridity, it is argued that legal theorising needs to become proficient in understanding the schematics of digital legality and its programming. In particular focus should be on establishing pause moments in the code that allow the human and the analogue to manifest and participate in digital legality.

Download the chapter from SSRN at the link.

Frankenstein: A Multidisciplinary Conference, June 14, 2018 @NorthumbriaUni

Frankenstein: A Multidisciplinary Conference 2018

Thursday 14 June 2018

Northumbria University Law School and Department of Social Sciences (in collaboration with the Crime Studies Network) is pleased to announce a multidisciplinary conference to celebrate the bicentenary of the first publication of Frankenstein or, The Modern Prometheus by Mary Shelley.

Call for Papers:

Law and literature, criminology and humanities papers and presentations from established academics and postgraduate students are particularly welcome. Other disciplines reflecting medical, scientific, historical, political or social aspects of the novel or of its many realisations in film, other media and the performing arts are strongly encouraged.

As well as papers on Frankenstein itself and related literary works we welcome reflections on the themes of the novel, such as irresponsible uses of scientific knowledge, the creation of ‘monsters’ through emotional neglect and social stigma, and miscarriages of justice (as in the case of Shelley’s Justine Moritz).

We will also consider papers and presentations on related themes if you care to propose them.

Please send a short (150) word abstract 

to: bl.frankenstein.conference@northumbria.ac.uk

Closing date for submissions is 1 February 2018. 

In Science Magazine's January 20, 2018 Issue: The Legacy of "Frankenstein" @sciencemagazine

Science Magazine devotes its January 2018 issue to Frankenstein. Included are several articles on the novel and its legacy:

Jon Cohen, How a Horror Story Haunts Science

David Shultz and Adolfo Arranz, Creating a Modern Monster

Kai Kupferschmidt, Taming the Monsters of Tomorrow

For more on the law, popular culture, and science of Frankenstein, here's a selected bibliography.

Josh Gilliland, Justice for Frankenstein's Monster (on the 1931 film)

Bridget M. Marshall, The Transatlantic Gothic Novel and the Law, 1790-1860 (Routledge, 2011).

Lee McAuley,  The Frankenstein Complex and Asimow's Three Laws

John R. Reed, Will and Fate in Frankenstein

A Special Issue on Law and Popular Culture From the Journal of the Oxford Centre for Socio-Legal Studies @OxfordCSLS

Now published:

Special issue of the Journal of Oxford Center for Socio-Legal Studies: Law and Popular Culture (Issue 3, 2017).

This issue includes

Opening matters, by Pedro Fortes and Michael Asimow

Foreword: The Funhouse Mirror: Law and Popular Culture, by Lawrence M. Friedman

Jewish Lawyers on Television, by Michael Asimow

Outside But Within: The Normative Dimension of the Underworld in the Television Series "Breaking Bad" and "Better Call Saul," by Manuel A. Gomez


The Portrayal of the Corporate Lawyer on TV: The US and British Models from L.A. Law To Trust and Suits, by Peter Robson

Lights, Camera, Affirmative Action: Does Hollywood Protect Minorities? by Pedro Rubim Borges Fortes

Photography's Transformation: Its Influence on Culture and Law, by Henry J. Steiner 

Law and Opera: Stimuli to a Sensible Perception of Law, by Gabriel Lacerda
 
More Human Than Human: How Some Science Fiction Presenta AI's Claims to the Right to Life and Self-Determination, by Christine A. Corcos

Law and Literature: A Dilettante's Dream? by William Twining 

Wire From the Field: Tackling Visual Knowledge: The Story of the Yale Visual Law Project, by Sandra Ristovska


Book Review: Law and Popular Culture: A Course Book by Michael Asimow and Shannon Mader

Miller on The Law of Time Travel @nyulaw @HUJILaw

Akiva A. Miller, New York University School of Law; Hebrew University of Jerusalem Faculty of Law, has published The Law of Time Travel. Here is the abstract.

Even as time machines remain as fictional as ever, time-travel stories hold important lessons for legal reasoning. Starting from the ancient paradigms of prophecy, the article explores the key features of the genre. Considering four key time-travel themes — the self-fulfilling prophecy, predictive policing, evil time-travelers, and getting one shot to undo a fateful moment — the article discusses how time-travel movies express subtle (and not-so-subtle) critiques of cornerstone legal concepts such as mens rea, culpability, obedience to law and individual freedom, regulation of information asymmetries, and negligence. Through this analysis, the article aims to introduce time-travel movies into the broader field of law and film studies.

Download the article from SSRN at the link.

Friend or Foe? How SF Portrays Alien Visitors @LaphamsQuart

From Lapham's Quarterly, a survey of sf literature, film, and television measuring alien attitudes toward humans. 

And For Those of You Who Thought Star Wars Had No More Legal Issues to Consider

Here are some practical questions and answers to mull over during exam-writing/grading time, courtesy of  Ryan Nanni and Spencer Hall's A Review of Star Wars Law.

You might also want to check out Derek R. Sweet, Star Wars In the Public Square: The Clone Wars as Political Dialogue (McFarland, 2016) (Critical Explorations in Science Fiction and Fantasy; 50).

See also this blog's prior posts here, here, here, and here  and an earlier study by Thomson-Reuters here.

Corcos on How Some SF Presents AI's Claim to the Right to Life and Self-Determination @lpcprof

Christine A. Corcos, Louisiana State University Law Center, is publishing More Human Than Human: How Some SF Presents AI's Claims to the Right to Life and Self-Determination in the Oxford Journal of Socio-Economic Studies, Hilary Term 2017. Here is the abstract.

If even the least self-aware human being has the right to life, simply because it exists, then could AI at some point also claim that right? Or can human-created AI, simply because it is human-created, simply never legitimately put forward such a right? The idea that human beings, because they are human, create and become the norm for such decisions is one that it is difficult to overcome, but it is one that philosophers, lawyers, and artists wrestle with. It is also one that we see depicted in many science fiction films and television series. Thus, who defines what personhood is becomes an important question. What happens if AI develops sentience, and emotions? What happens if AI develops personhood? We are only now beginning to consider whether such creations, having equivalent or greater intelligence and abilities than their creators, should have the same, or qualified liberties and privileges. If we do consider that question, what test should we apply to determine whether these artificial beings should have such rights? Some legal regimes, such as the European Union, are already beginning to take such questions seriously.

Download a draft of the essay at the link.