Solveig means "no disrespect" to those organizing the Yale A2K conference.

Well, this is clearly an example of the PFF policy that each Fellow speaks only for herself, because my disrespect is total.

To show why, look at the opening sentence of the description of the event, which packs an impressive amount of platitudinous drivel into a mere 32 words. The sentence:

In the digital era, most multinational corporations and policymakers are of the view that the current trend characterised by increasing intellectual property rights and corporate control over knowledge best serve society's interests.

The problems:

(1) "Increasing intellectual property rights." This idea that IP rights are increasing has assumed mantra status in the copyleft, but it is always presented as self-evident truth, devoid of proof or analysis. IP rights have increased in some ways, decreased in others, and the balance is unclear.

The usual example is the extension of the copyright term that was litigated in Eldred, but even that example is illusory. The plaintiff indignated that Congress had extended the term nine times between 19, but as the Court noted (footnote 2), these were all placeholders designed to maintain the status quo while Congress considered the major reform in 1976. In fact, the extension in 1976 was only the fourth significant one in over 200 years. This inconvenient fact has had no impact on the rhetoric.

In addition, once upon a time creations were better-protected by technological impossibilities or excessive costs than is now the case. For example, it was not possible to produce a book without an expensive printing press. Even with the advent of the copying machine and the computer, it costs more to print out a work than to buy a printed edition. Legal protections are adapted to the circumstances of hard reality. If legal protections wax as the protections of technological impossibility and costs wane, then it is far from clear that one could say that IP rights overall had expanded. This is a question worth debating -- Yale assumes the answer.

Personally, I think that the copyright term has gotten over-long, and that some adjustment would be beneficial. But most of the problems could be taken care of by making the term a specific number of years rather than a function of the creator's lifespan, by adopting registration systems so copyright holders can be found, and by adopting abandoned property mechanisms. The issue is a problem, not a crisis.

(2) "Corporate control over knowledge." It is hard to tell what this means. Corporate control over anything has never been less, as the Internet and the computer disintermediate everything. And IP law and policy has always drawn a distinction between "knowledge," which canot be propertized, and particular expressions of knowledge, which can be. Again, this line is not easily drawn and is a source of much debate, but assuming increased corporate control is laughable.

(3) "Most multinational corporations and policymakers" favor this trend toward increased IP rights and corporate control. Leaving aside the issue whether any such trend exists, the statement is nonsense. Corporations are split in every possible direction on the issues of IP rights, as attested by the debates over copyright issues, P2P, net neutrality, patent injunctions, and a host of other issues. Corporations are constantly torn between wanting to protect their own property and calculating how to free ride on someone else's, and they are often quite schizo about it. (After attending one patent reform conference, I commented that the companies were so uncertain where their interests lay that they were seriously considering acting on principle.)

To illustrate, in the KSR case, PFF filed an amicus brief arguing that the non-obviousness test of patentabilty needs to be tightened -- that is that patents should be tougher to get. Among those on the same side are Cisco and Microsoft.

To illustrate further, corporations are working out new institutions for licensing IP that involved the renunciation of some of their property rights, in the interests of promoting interoperability and cooperation. Now, if Yale wants to hold a conference on the relative utility of RAND, RAND-Z, and CR terms in the development of IT markets -- that would be worthy of its money.

That the Yale organizers can make such a statement about corporate interests with (presumably) a straight face shows how out of touch with reality they are. It also exhibits the academic urge to demonize those grubby people who actually worry about profits instead of living off their endowments like gentlemen.

(4) "Serve society's interests." The idea that there is some sort of society's interest that can be found by the academic best and brightest is also an absurdity.

Society is served by processes that encourage innovation, investment, human autonomy, freedom, and other enablements of human fulfillment. These are called property rights, the rule of law, and the market, plus governments that respect these values, and, of course, ample scope for eleomysonary activities. "Society's interests" are whatever these processes produce, not a goal to be identified and attained.

* * * *

All that fuzzy error, packed into only the first sentence! And, of course, the speakers' list includes no one who is actually involved in filling the digital cornucopia.

Our only hope is that all involved receive even more foundation funding to keep holding even bigger conferences. (The sponsors are the MacArthur Foundation, the Ford Foundation, the Open Society Insitute, and the Social Science Research Council.) Then they will be kept too busy to bother the people who are actually doing the work of expanding opportunities for all the peoples of the world.

I certainly am with Solveig on "the importance of the rule of law, freedom of contract, property rights, and relief from corruption and oppressive taxation and regulation."

posted by James DeLong @ 11:09 AM | Academia

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