My first reaction to the Digital Freedom campaign, launched by CEA, EFF and PK, was surprise. Lets see... EFF and PK are known IPR critics; thats a fair comment given their opposition to all economic rights innovators enjoy under copyright and patent doctrines. The CEA on the other hand, is an organization hosting reputable sponsors from the technology industries, the vast majority of whom heavily patent to recoup heavy R&D costs. Hence, the partnership makes sense when I realized that CEA likes patents but not copyrights.

CEA's dislike of copyrights, despite the heavy reliance of its member consumer device firms on another form of appropriation, patents, touches on an important issue in IP policy. Such a position ignores the unitary nature of copyrights and patents, both of which rest upon the economic basis of what we call intellectual property rights.

Ideas... can be copied freely and used by anyone ...without depriving others... But ideas ...take time and money to create... ideas are so easy to spread and so hard to control, only with difficulty may creators recoup their investment... absent IP... most would prefer to copy... inefficiently few new ideas would be created. Mark Lemley, Ex Ante Versus Ex Post Justifications for IP, 71 UChicago L. Rev. 129, 131 (2004).

The main implication from Lemley's description is that IPRs' economic justifications extend across different forms of protection.

The common basis for copyrights and patents becomes clear when one observes modern technologies and digital markets, where copyrights and patents often act as complements, substitutes or offer concurrent protection for consumers offerrings. To view different forms of IPRs without considering their underlying rationale ignores how they inter-relate in modern industrial markets.

Years ago, Professor Edmund Kitch called viewing copyrights and patents in isolation an "elementary and persistent error" in IP analysis. Elementary and Persistent Errors in The Economic Analysis of IP, 53 Vand. L. Rev. 1727 (2000).

Considering IP as a unitary economic argument is vital in today's technology industry. As content, device and software firms leverage different IPRs commensurate with R&D investment and the type of invention, the reason why they leverage copyrights or patents is constant: to appropriate returns and the incentive to improve upon inventions/creative works. As Professor Henry Chesbrough, who inked the term "open innovation," tells us, IP is critical when the value of an innovation depends on inputs from many different parties. IP allows firms to license their technologies and goods; apparently, CEA would only have this apply to patents.

I'll wait for Digital Freedom to release more substantive policy materials before commenting on their effort, but I will say I hope CEA addresses why it likes one form of IP and not another, and for it to clarify in detail on fair use or other copyright doctrine proposals that may have analogous ramifications in patent law. The answer to these questions should be more persuasive than some vague call to salvage "freedom" for consumers Digital Freedom currently espouses.