Negative Innovation Turn - GDI 2024

Negative Innovation Turn
Notes
This is a case turn to be read against innovation advantages that says patents can incentivize anti-social innovation/innovation with negative externalities. There are cards to make it a net benefit to the prizes counterplan, or could be read as a standalone. Aff teams, don’t forget- your best answers to this argument are probably already in your innovation advantage internal links, solvency, and impacts.
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Negative Innovation- Laundry List 1nc
Turn: Antisocial innovation: most innovations produce no social value and some actively harm people- bump stocks, tobacco companies, pricing algorithms, surveillance technologies, and harmful AI prove.
Buccafaso & Weinstein, Duke University, School of Law, Professor 23 [Christopher & Samuel, Georgia Law Review, 1/29/23, “Antisocial Innovation”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4520979 DOA 7/21/24, MP]
According to all these perspectives, the biggest concern with innovation is that society might not get enough of it. Without massive government funding or monopolistic patent pricing, we may miss out on the next round of innovations that will increase economic growth, propel society forward, and improve human well- being. But what if that’s not the whole story? What if it turned out that a substantial portion of innovative activity was actually bad for society as a whole? In this Article, we make just this argument. While we are, of course, thrilled to be able to research and write this Article on internet-enabled computers, with access to clean water, indoor plumbing, antibiotics, vaccines, and a host of other modern conveniences, we don’t view these transformational innovations as typical. No doubt, many innovations have radically transformed human lives, prolonging and improving them. But we shouldn’t let these breakthroughs distort our view of innovation as a whole. Vanishingly few innovations dramatically improve society, while many don’t really affect it at all. And, we argue, a distressingly high number make life worse. We call these antisocial innovations.
Almost no innovations are purely antisocial, in the sense that they produce only harms and no benefits. Bump stocks, which enable semi-automatic firearms to operate like fully automatic weapons, may come close, in the sense that they have no meaningful military use and exist primarily to evade regulation of machine guns.25 More typical are innovations where the benefits to one group are outweighed by the costs to other interests. Consider the following examples.
When California prohibited cigarette manufacturers from adding flavorings, including menthol, to their products, some producers adopted a synthetic chemical that generates menthol’s cooling sensation but that does not add unlawful flavor.26 Obviously, this change is valuable for the cigarette manufacturers, but it is almost certainly going to reduce the effectiveness of the flavor ban and, accordingly, social welfare.27
Pricing algorithms are another example. For centuries, merchants relied on their own judgment to set prices for their goods.28 They were able to consider their costs, estimate their customers’ willingness to pay, and perhaps apply a limited knowledge of what their competitors were charging. Before the twentieth century, merchants typically did not advertise their prices; instead, prices were based on the outcome of bargaining with individual customers.29 With the advent in the twentieth century of convenient methods for displaying and changing prices, most retail prices were standardized: almost all consumers paid the same price for the same goods.30 Now, many sellers, including the most powerful merchants—Amazon, Walmart, and the big airlines—rely on computer programs to set their prices.31 These pricing algorithms generate prices based on traditional inputs like cost of goods and demand, but they can also account for the prices of multiple rivals, the time of day, day of the month, and time of year a sale is made, and, with the advent of big data, they can personalize prices for individual consumers.32 This technology is a huge step forward for sellers, but on the whole consumers will almost certainly pay more for algorithmically priced goods.33 The same is also true for apartment rents, which may be getting more expensive because large landlords use algorithms to set prices.34 A significant wealth transfer from consumers to sellers is the most likely result, reinforcing already alarming wealth distribution disparities in the United States.
Consider too the vast array of surveillance technologies that companies are employing in the workplace to track laborers’ motion, bathroom breaks, keystrokes, and eye movements.35 While firms may claim that surveilling workers will make them more efficient and, ultimately, reduce consumer prices, technology’s impact on workers’ health, privacy, and autonomy is alarming. Employees at Amazon warehouses face greater physical risks than do police officers, 36 and surveilling workers’ behavior is especially damaging for labor organizers, women, and people from historically marginalized communities.37
Finally, take artificial intelligence (AI). Recent stunning breakthroughs in AI have created tools, like ChatGPT, that can mimic human speech and writing or create accurate images based on text.38 AI is likely to have a range of positive impacts for society, including automating mundane tasks humans currently perform, creating new forms of art, and helping solve challenging technical problems in science and medicine. But AI has great potential to harm society. Its ability to take on many human tasks may lead to mass unemployment. And AI machines are likely to act in unpredictable ways, even in ways that physically harm humans. Those who know AI best are among the most concerned. A group of leading AI experts, from Google, Open AI, and other firms involved in developing the technology, signed a statement warning that “[m]itigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war.”39
As these examples attest, many innovations are, on balance, harmful to people. While we don’t deny the value of lifesaving breakthroughs like the Covid-19 vaccine, it is important for policymakers to recognize that many, and perhaps most, innovations do not fit the rosy image offered by politicians and tech gurus. This Article begins to challenge that image, and it offers a renewed vision of policymaking in a world where innovation can be beneficial but where it can just as easily be awful.
General/Laundry Lists
Don’t fall for the innovation fetish- negative innovations hurt social welfare- examples from economics and health care prove.
Buccafaso & Weinstein, Duke University, School of Law, Professor 23 [Christopher & Samuel, Georgia Law Review, 1/29/23, “Antisocial Innovation”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4520979 DOA 7/21/24, MP]
Given the extensive investment that society directs towards innovation, one might conclude that it’s a uniformly wonderful thing. Certainly, we are all grateful for anesthesia, clean drinking water, and indoor plumbing. But just because some innovations improve the quality of life doesn’t mean that all—or even most—do. In this Part, we begin to explore innovation’s dark side, the ways in which new developments and technologies can make people’s lives worse. First, we describe the developing scholarly literature on antisocial innovation in contexts ranging from health and medicine to telecommunications and investing. Our goal here is simply to introduce the fundamental concern. We elaborate on it more thoroughly in the next Part. This Part concludes by addressing the mechanisms that policymakers have used to combat antisocial innovation, including regulation and tort law.
A. ANTISOCIAL INNOVATION
Unconditional love of innovation is a relatively recent phenomenon; innovation was not always viewed in such a positive light.121 Indeed, before the Industrial Revolution in the nineteenth century, innovation often had negative connotations.122 Between the middle of the nineteenth century and the middle of the twentieth, humanity was treated to a series of what Robert J. Gordon calls “Great Inventions.”123 Innovations in electricity, pasteurization, clean running water, transportation, and communication radically altered people’s lives, extending them and making them far more pleasurable.124 According to Gordon, these inventions represent a “unique clustering” that made possible a period of unparalleled economic and social growth.125 Since the 1970s, innovations have not kept up with the transformations brought about by the great inventions, and growth in our standard of living has slowed.126 Recently, a handful of scholars have gone further and pushed back on current notions of innovation as an unalloyed good, or what economist Paul David calls “the innovation fetish.”127 Alex Coad, Paul Nightingale, Jack Stilgoe, and Antonio Vezzani have argued for a more nuanced understanding of innovation, which recognizes that it “can have good and bad effects.”128 They identify various types of harmful innovation, including those unintentionally leading to environmental harm (e.g., pesticides, air conditioning), those intended to be harmful (e.g., the atomic bomb), and those intended to deceive consumers or allow firms to avoid regulation (e.g., certain financial products and e-cigarettes).129 Similarly, Ariel Ezrachi and Maurice Stucke have recognized that innovation is not inherently good.130 Indeed, they argue, there are many examples of what they term “negative innovation,” which “work[s] against the interests of consumers and society [and] reduces overall welfare.”131
Framing the debate in moral terms, Ned Snow has argued that “some creations promote actions that are wrong, or in other words, they promote immoral behavior.”132 He concludes that “works that are harmful to society should not be incentivized or rewarded.”133 Gianluca Biggi and Elisa Giuliani performed a literature review on scholarship analyzing the “noxious effects of innovation.”134 Using a custom search query, they found 125 articles published between 1991 and 2017 on harmful innovation.135 The authors divided this body of scholarship into five “clusters”: the negative impact of technology on workers; innovation’s unintended negative effects on the environment; innovation’s negative effects on economic growth and economic equality; the dangers of emerging technologies, such as big data and social media; and the negative effects of “open innovation” on firm performance.136
Other scholars have focused on the negative impact of innovation in specific economic sectors, including financial services and health care. After the 2008 financial crisis, which was linked in part to financial innovations like collateralized debt obligations and credit default swaps, some researchers questioned the benefits of financial innovation. Simon Johnson and James Kwak argued that financial innovations are different than many other types of innovation in that they do not necessarily make the world a better place.137 In their view, the “principal purpose” of financial innovation is to facilitate “financial intermediation”—the movement of capital from unproductive uses to productive uses.138 But not all financial intermediation is good for society. When evaluating financial innovation, the authors urged that policy makers consider whether the financial intermediation it facilitates is “beneficial” or “excessive and destructive.”139
Scholars have also studied the effects of harmful innovation in the health care sector. Shobita Parthasarathy has shown how certain health care innovations can be socially harmful, at least in some populations.140 The pulse oximeter is an example. Parthasarathy explained that the company that commercialized this technology failed to test it on patients with different skin tones, with the result that the oximeter is less accurate for Black users than for white users.141 These oximeters sometimes produced results for Black users showing inflated blood oxygen levels, potentially causing those users to decide against seeking medical attention when such attention was warranted.142 Patents on the oximeter prevented competing devices from being developed, exacerbating the problem.143
The foregoing provides a brief sense of the scope and scale of antisocial innovation. But while some recent scholarship has explored the potential for innovation to harm society, the bulk of the scholarly literature across disciplines continues to treat innovation as a purely salutary goal and seeks to unlock ways to increase the production of new inventions.
Negative innovation harms individuals- pricing algorithms, SUVs, thalidomide, me-too drugs, and addictive products are all examples.
Buccafaso & Weinstein, Duke University, School of Law, Professor 23 [Christopher & Samuel, Georgia Law Review, 1/29/23, “Antisocial Innovation”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4520979 DOA 7/21/24, MP]
1. Individual Harms. Perhaps most obviously, innovations can hurt the people who are exposed to them, and they can hurt them in a variety of different ways—physically, emotionally, and financially.188 Harms to individuals can come about in many different fashions, some of which are intentional while others are accidental by-products of other goals.
Often it may be beneficial for innovative firms to hurt people directly and intentionally. As the figures above indicate, harms to individuals will arise when firms have not been made to internalize the costs of their innovations to others in society.189 Although the innovation is privately beneficial to the firm, it imposes net social costs on others exposed to it. For example, the pricing algorithms firms use to obtain greater profits by marking up goods to specific customers clearly benefit the firms employing them at the expense of consumers who will pay higher prices.190 The whole point of pricing algorithms is to extract value from consumers, and consumers may have little choice but to interact with them.191 In other cases, new innovations may benefit some people at the expense of others. Consider, for example, the substantial increases in the size and weight of passenger trucks and SUVs over the past couple of decades.192 In recent years, trucks and SUVs have grown significantly, with the best-selling trucks now over fifty-five inches tall—the average height of an eight-year-old.193 They are also far heavier—more than half a ton—than they were in 2000.194 Larger trucks are safer for their occupants,195 and their size and aggressive styling may appeal to some consumers. But these vehicles are horrifically more dangerous than smaller ones to people outside of them, like other motorists, cyclists, and pedestrians.196 Their larger blind spots increase the probability of accidents, because drivers can’t see as well.197 And when accidents do happen, they are much more deadly, because the vehicles weigh so much more.198 Thus, we have a situation in which a smaller number of people are made better off at the expense of a larger number who are put in more danger.
Sometimes, innovations may harm consumers of the product themselves. In some cases, this can happen because the product’s risks aren’t known at the time of purchase. When it was first developed, thalidomide was thought to be a safe treatment for morning sickness during pregnancy.199 Only later did it become apparent that the drug could cause serious birth defects.200 The list of such examples is long.
But headline-grabbing examples like thalidomide may not be the most troublesome pharmaceuticals from a social welfare perspective. Recent research in both the United States and Europe indicates that an astonishingly large percentage of FDA-approved new drugs provide no meaningful therapeutic benefit over their predecessors, and, in many cases, they are worse.201 These studies cover a wide variety of pharmaceuticals in different countries. Their estimates for the percentage of zero and negative value drugs range from a quarter to a half of the sample.202
Along similar lines, Robin Feldman, David Hyman, W. Nicholson Price, and Mark Ratain have argued that patents can sometimes represent “negative innovation.”203 Their work focuses on situations in which the structure of patent law encourages innovation that harms consumers.204 They show, for example, how a pharmaceutical manufacturer offered a drug with toxic side effects at higher doses than necessary because lower doses were considered obvious and therefore not patentable.205
Obviously, if a drug is worse for patients than the previous technology, there is clear antisocial harm. But the true harm is even greater. Many of these pharmaceuticals are so-called “me too” drugs that mimic already existing options.206 In so doing, they reduce the demand for the original valuable drug and, thereby, undermine the incentives to achieve truly beneficial innovations.207 This phenomenon is an example of the risks that we described above. But for the existence of a patent, firms wouldn’t invest in the me-too drug because R&D costs would exceed expected returns (Box 3: negative private/negative social). Once they can patent their discoveries, though, copycat firms can expect profitable returns, so they will invest in R&D even though the social benefits are negative (Box 1: positive private/negative social). While it is socially valuable to award a patent to the initial groundbreaking pharmaceutical in the field, awarding patents to all trivially different follow-on drugs is socially harmful.
Finally, people may be harmed by innovations when they affirmatively choose to consume products that are bad for them, even though the risks are widely known. The most obvious examples include addictive products like opioids and nicotine. Social media usage also may fall into this category.208 An increasing number of studies show that social media is bad for people’s well-being, that people appreciate its harms, but that they struggle to give it up.209 At other times, people may not initially realize the risks of a new technology. For example, Apple’s AirTags, which were created to help find lost keys or luggage, have been called “a gift to stalkers.”210 These devices pose an additional threat to victims of intimate partner violence, even beyond stalkerware apps and compromised accounts, because they rely on a global network of billions of Apple devices to track whereabouts.211 Once Apple realized (in response to outcry) how easily AirTags enable cheap, efficient stalking, they modified them to try to prevent “unwanted tracking,” but this ex post self-regulation is only a partial solution and is easy to circumvent.212
Negative innovation causes societal harms- hurts democracy, health disinformation, economic risks, and exacerbates algorithmic bias.
Buccafaso & Weinstein, Duke University, School of Law, Professor 23 [Christopher & Samuel, Georgia Law Review, 1/29/23, “Antisocial Innovation”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4520979 DOA 7/21/24, MP]
6. Societal Harms. Innovations sometimes do more than harm individuals or competitors; they damage society itself. We enumerate this category to capture a wide variety of antisocial outcomes that are more generalized than the particularized harms described above. We focus on three issues: risks to democracy, risks to the financial system, and distributive harms. Each of these issues is hugely important, and we can do no more than scratch the surface of any one of them in this Article.
The risks that social media poses to democratic values are becoming increasingly apparent. In addition to its addictive qualities, which hurt many users, social media is a conduit for dangerous misinformation and conspiracy theories.304 Russian operatives have re

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