By Dani Kass

Law360 (September 30, 2020, 4:53 PM EDT ) A top Microsoft attorney on Wednesday advocated for companies to stop thinking of all data as intellectual property that needs to be protected, and instead open up data that can be used for the larger societal good.

Speaking at the American Bar Association Section of Intellectual Property Law's virtual IP Fall Institute, Microsoft Assistant General Counsel Dave Green said the traditional role that IP plays in companies shouldn't automatically extend to the data they collect. Instead, some data can be shared through agreements that aren't framed as IP licenses, he said.

"We have more data now and will have more data tomorrow than we ever will," said Green, who leads Microsoft's open innovation and IP group. "The incentives that IP provides to produce and create and distribute data just aren't there."

The statements were part of a panel on "Emerging IP Issues for In-House Counsel," moderated by Perkins Coie LLP partner Judy Jennison and featuring attorneys from Microsoft Corp., Uber Technologies Inc., Facebook Reality Labs and Getty Images Inc. They also discussed concerns about how IP work and priorities have changed during the COVID-19 pandemic. 

During the discussion on open data, Jennison raised concerns that Green's model made it hard to crack down on misused data. Green said that there are communal norms that tend to act as enforcement, and that open data isn't as vital to control as a company's proprietary data.

"You want your agreements to not act as a legal basis for control," he said. "You actually want them to act as a guide post for the expectations that you have."

When Facebook Associate General Counsel Stephen McGrath said privacy also needs to be taken into account in discussing open data, Green said there's a "broad swath of data" that doesn't feature privacy concerns. For example, Microsoft collects data on temperature and utilities in its buildings to monitor its goal of being carbon negative by 2030.

"We have pretty good information about how the modern workplace operates," Green said. "Now that we have COVID, we've got more interesting information about what happens when the workforce works at home. You can take that and share it and, if you did so under an open model, all of a sudden you've got cities and municipalities and governments and even competitors and businesses who have this rich sort of data in order to utilize to make important decisions."

He added: "We can have an adult discussion about data without the privacy boogie man sitting there."

During an extended conversation about how the pandemic is changing expectations and norms, McGrath said protecting IP on a broad scale is just as important as ever, but that smaller IP issues are at times seeming less important. He said there have had to be some compromises in confidentiality to get work accomplished, whether it be continuing research, product development or third-party deals.

"I wouldn't call it a wholesale abandonment of a desire to protect IP, but a willingness to be more flexible when it comes to some of the practical issues about interacting with others," he said.

Heather Cameron, the director of legal risk mitigation at Getty Images, said the pandemic has brought in challenges with people not knowing copyright laws in particular. She said there's been "rampant infringement" from customers who don't know they have to clear rights or don't understand that not everything on the internet is public domain.

"All of our customers, they're in a financial bind." Cameron said. "People are relying on more interns who maybe don't have experience with IP training. No one is in the office talking over the cubicle, 'How do I do this?'"

She added that attorneys should be having conversations to make sure people understand terms like fair use and public domain, and know what steps they need to clear for infringement purposes when taking on projects.

In the same vein, Microsoft's Green said they're having to work harder to communicate with engineers on IP issues. There's less time to have engineers explain what is being developed and then work through how to protect it, so attorneys are having to do more research to understand technology on their own so they can be prepared for video calls. 

When discussing litigation, Uber's IP head, Bill Harmon, said he's had to learn how to best utilize video calls to get points across. That often includes using graphics that are engaging and animated when presenting, rather than just a slide of text.

"It's easy on Zoom to tune out and not listen to you and just read what's on that slide," Harmon said. "If you can just embrace that that's what's going to happen, then you can put things on the slide that might have some level of engagement. It might open dialogue, which is what you want. As opposed to someone saying, 'Oh, my God, when is this thing going to end? I have to get to my next thing.'"

--Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.