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The Emergent Role of Libraries in Judicial Warfare, 3 U University of Miami Law School Institutional Repository University of Miami National Security & Armed Conflict Law Review 10-1-2013 Sun Tzu’s Battle for ourY Footnotes: The meE rgent Role of Libraries in Judicial Warfare Mark McCary Follow this and additional works at: http://repository.law.miami.edu/umnsac Part of the Military, War and Peace Commons, and the National Security Commons Recommended Citation Mark McCary, Sun Tzu’s Battle for Your Footnotes: The Emergent Role of Libraries in Judicial Warfare, 3 U. Miami Nat’l Security & Armed Conflict L. Rev. 46 (2013) Available at: http://repository.law.miami.edu/umnsac/vol3/iss1/5 This Article is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami National Security & Armed Conflict Law Review by an authorized administrator of Institutional Repository. For more information, please contact [email protected]. 46 ARTICLE Sun Tzu’s Battle For Your Footnotes: The Emergent Role Of Libraries In Juridical Warfare Mark McCary ∗ A wise general makes a point of foraging on the enemy. —Sun Tzu, The Art of War, Waging War1 ABSTRACT This paper posits that libraries—specifically science and technology libraries—have emerged on the international scene as a critical source of soft power—non-military power.2 Public and private entities can leverage a library’s digital resources to accelerate3 the development of critical technologies4 * Attorney, Texas License, 2000; Robert Bosch Foundation Fellow, 2000–2001; J.D., University of Texas at Austin, 1999; B.A., Virginia Military Institute, 1992. Major, U.S.A.F.R., 1992–Present. McCary & McCary, P.C., http://www.m2lawpc.com. Dedicated to those serving in Academia. (Assessments are based on the Author’s personal defense related experience and renewables industry related worK. Views are not necessarily representative of U.S. Government policy positions.) 1 SUN TZU, THE ART OF WAR 14 (James Clavell, ed., Delta 1988) (6th Cent. B.C.); see also id. at 9 (“The Art of War is of vital importance to the state. It is a matter of life and death, a road either to safety or to ruin. Hence under no circumstances can it be neglected.”). 2 See JOSEPH S. NYE, JR., SOFT POWER: THE MEANS TO SUCCESS IN WORLD POLITICS 76–77 (2004) (noting research in physics and chemistry, internet websites, patents, and R&D expenditures as potential means of soft power); see also id. at 83–85 (discussing Asian power and stating that it will take some time for China to have the same soft power impact the U.S. enjoys). 3 See David Kramer, Science Board Details China’s Leap in Science and Technology, PHYSICS TODAY, Mar. 2010, at 30 (“If anyone still needs convincing on the speed with which China is ascending as a world science and technology (S&T) leader, the latest edition of Science and Engineering Indicators, the biennial encyclopedia of statistics assembled by the National Science Board (NSB) should suffice.”); see also id. at 30 (noting that China’s research workforce has nearly tripled from 500,000 in 1995 to nearly 1.4 million in 2007 and its emphasis on investment and education has achieved a dramatic amount of synergy). 4 From the author’s perspective, science and technology libraries provide access to baseline research necessary to accelerating innovation by shorting the time necessary to prepare or accumulate experimental and theoretical Knowledge required for technological advancement. Cf. S.J. DEITCHMAN, BEYOND THE THAW: A NEW NATIONAL STRATEGY 193–211 (1991) (discussing aspects of accelerated technology development and arguing there is a need to maintain the edge in such areas as computing hardware and software, materials, aircraft and missiles, fiber optics, superconductivity, directed energy, etc., and noting that if we lose a lead we may never regain it as we face an increasingly uncertain future and pointing out that 2013] Sun Tzu’s Battle For Your Footnotes 47 47 through horizon scanning,5 targeting,6 early warning7, alert services8, digital exploitation,9 and cross-domain delivery.1010 Library resources play a key role in strengthening the research capabilities of public and private entities. However, current library trends threaten cutting-edge proprietary research intended for only very private audiences. focusing on civilian technology advancements can pay dividends for military defense strategy). 5 Horizon Scanning is defined by the author as the electronic survey of available digital information resources, including blogs, social networKs, search engines, portals, newsgroups, intranets, to deliver the proper information to the proper customer at the proper time. It is generally accomplished through the use of software tools. See, e.g., Horizon Scanning, AMI ENTERPRISE INTELLIGENCE SOFTWARE, http://www.amisw.co.uk/horizon-scanning-solution.html (last visted Jan. 4, 2012) (defining horizon scanning and offering for sale horizon scanning software). 6 Targeting is defined by the author as those activities designed to identify and exploit a research and development objective. Military concepts of reconnaissance, surveillance, target identification, and selection have been translated into Competitive Intelligence theories and practices. See JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-60: JOINT DOCTRINE FOR TARGETING (2007) http://www.bits.de/NRANEU/others/jp-doctrine/jp3_60(02).pdf (discussing the definition, nature, and characteristics of targets and the joint targeting process); U.S. AIR FORCE, AIR FORCE DOCTRINE DOCUMENT 2-1.9: TARGETING (2006), http://www.fas.org/irp/dodd ir/usaf/afdd2-1.9.pdf (establishing “doctrinal guidance for planning, executing, and assessing targeting operations”); U.S. AIR FORCE, AIR FORCE INSTRUCTION 14–117: AIR FORCE TARGETING (2009) http://www.af.mil/shared/media/epubs/AFI14-117.pdf (defining Air Force targeting responsibilities). 7 Early Warning is defined by the author as a system of analysis used to timely determine risKs, marKet shifts, and competitor developments in a particular industry. This system of analysis is augmented by sophisticated software tools that provide web surveillance and reconnaissance. See, e.g., ICI-32 - Early Warning Systems, INSTITUTE FOR COMPETITIVE INTELLIGENCE, http://competitiveintelligence.ning.com/events/ici32 early warning systems 2 (last visited Jan. 4, 2012) (discussing the fundamentals for the design of early detection and warning systems); see also Adrian Alvarez, Situational Early Warning, COMPETITIVE INTELLIGENCE MAG., Jan.– Feb. 2007, at 14–18 (discussing the Key steps in situational early warning methodology). 8 Alert Services are defined by the author as those means used to alert customers to breaKing competitive intelligence developments. Alert Services are often combined with Horizon Scanning and Early Warning although each is distinct in nature. See, e.g., CyberAlert Applications, CYBER ALERT, http://www.cyberalert.com/app_competitive_intelligence.html (last visited Jan. 4, 2012) (describing competitive intelligence services offered for purchase). 9 Digital Exploitation is defined by the author as those means used to taKe unfair advantage of a competitor’s digitized pre-competitive data. 10 Cross-Domain Delivery is defined as the assembly of critical technology information from various disciplines that are ultimately associated with one technological innovation for use by a consumer—e.g. stealth technology; Cf. Feeding the Dragon: Technology Transfer and the Growing Chinese Threat Before the Joint Economic Committee,105th Cong. (1997) (statement of Peter M. Leitner), available at www.house.gov/jec/hearings/espio nag/leitner.htm (discussing integration of technologies and forecasting a projected loss of technology edge to future adversaries such as China, specifically in the field of stealth technology). 48 U. MIAMI NAT’L SECURITY & ARMED CONFLICT L. REV. [Vol. III Western authors, who submit for early circulation publications on emerging technology issues, may find their works exploited through deep dive research,11 citation analysis, unsanctioned access, and networked digital library (“DL”) holdings. Separately, Western librarians may find themselves victims of information attack via surreptitious inquiries for unclassified but sensitive materials or cyber penetrations.12 The end result can be a hostile competitor’s reliance on library information systems for unauthorized and competitive development of dual-use (civilian/military) applications.13 More importantly, these library trends can be used to undercut the legal precepts of newness and innovation necessary to patent law.14 This paper draws on China as a case study to help lawyers, businessmen, researchers, and analysts better understand threats and defensive strategies for intellectual property rights. China provides an example of how a competitor state, also characterized as a peer adversary,15 relies on its National Science Library (“NSL”) and Competitive Intelligence strategy to boost research advantage for State-influenced academic, governmental, and military entities.16 China’s LIS marshals soft power through tactical and strategic intelligence collection/analysis,17 early warning and alert services,18 and regulatory/patent 11 Deep Dive Research is defined by the author as any research activity that goes beyond first- line web searches. 12 See Joanne Kuzma, European Digital Libraries—Web Security Vulnerabilities, 28 LIBRARY HI TECH 402, 402–13 (2010) (discussing “[s]ecurity problems and breaches” and noting that librarians have “unique security concerns
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