7 Ways To Ruin A Technological Revolution

I've just got round to listening to James Boyle's talk at Google, 7 Ways To Ruin A Technological Revolution. Astute and entertaining as ever he makes most of the key points about intellectual property policy in the space of little more than half an hour (followed by a Q&A session):

• The making of IP policy is disproportionately driven by emotive appeals by wealthy artists and industries. WIPO has no economists or empiricists on the payroll and policymakers worldview, shaped by IP maximalist lobbyists dictates that errors can only be made in one direction - over protection. (He relates an amusing conversation with a staff member of one of the collecting societies where on asking about whether singing in the shower should be monetised, he was told "That's just a problem of monitoring.")
  
• There is a complete failure to recognise the reality that every creator's inputs are someone else's outputs. The focus is only on protecting the outputs
• Whenever technology is factored into the debate the entire focus is on the negative effects of the technology - the ability to copy easily leading to piracy, rather than the vast new cheap distribution networks and markets it opens up.
• We are very bad in the West at understanding the benefits of openness
• We ignore creativeness that does not involve property rights - if Tim Berners-Lee was trying to release the Web as a set of open protocols today he'd be considered a complete nutcase. We ignore the benefits of technologies like the web and the end to end Net. So the computer as a general purpose machine becomes a bad thing and we have to move to controlled or trusted systems
• For IP maximalists it is important for policy to be made internationally. It helps keep the NGOs out and then harmonisation upwards can be managed sequentially. Germany has life plus seventy copyright term then the rest of the EU harmonises up. Then US harmonises up to match EU. Mexico is now on life plus 100 years... Also in almost every international IP treaty, rights are mandatory and exceptions optional
  
• It is important that opponents fail to engage with the political process and there is no community like the techno-geeks for that. James reckons we bring self marginalisation to the level of an Olympic sport, which is really hard to do given we have all the good arguments on our side. Apathy on the part of geeks is incredibly useful to maximalists - geeks say that law is stupid and therefore deny that reality. Not a good tactic for getting politicos on your side

James reckons one of the good things he does now is turn out graduates who know by rote: "IF that were illegal, Google would be illegal."

As usual with his talks there are a number of priceless one-liners too.

"I was talking to the French senate about the Internet... They were against it." One of the French politicians was very indignant when he was finished and lambasted him about reducing such a sacred thing as creative culture to the realm of property. He fiercely told James: "There are two points - it has nothing to do with money and the author must get paid!"

On patents he singles out the Court of Appeals for the Federal Circuit for particular criticism for ignoring the test of non-obviousness - due to their misunderstanding of the technologies - in considering whether to uphold patent claims, especially in the area of genetic engineering and computer software. HE suggests their ignorance of biology is down to treating it as "chemistry with longer molecules" and since none of the biotech stuff was around when they were at school in the 1960s then it must be complicated; which has led to a whole load of things getting patent protection that high school students now do as a matter of routine. He also reckons the Supreme court don't like the federal circuit appeal court because they have an 'uncanny ability to piss them off by saying things like: "they will probably defer to us because we are the specialists"'; and that he expects SCOTUS to dish out "several ritual canings of the court of appeals for the federal circuit in the next three years." Apparently they nearly did in the recent Metaboli case but chose to dodge the issue of whether you could patent the idea of having a thesis, testing it in the world, figuring out whether the results confirmed or denied it etc. Jamie's fear is that in dishing out their lesson to the appeals court SCOTUS will pick on arcane little things rather than the substantive stuff they really need to tackle.

In the Q&A he accepts the point that gathering and analysing empirical evidence in order to determine where the IP balance point should be is a really difficult task. OR it would be an enormously difficult question for people of good will at least. Luckily for him the boundaries of IP are actually so far out that he can come up with a number of decent empirical arguments e.g. when extending copyright terms don't extend them for dead people - no matter how much more incentive you provide the dead person is unlikely to create any more. Secondly despite harmonisation moves there is often a time delay in one jurisdiction catching up with a parallel one. So on the EU database directive which covers an IP right not available in the US the database markets in the EU and US can be compared. On every measure the US market out performs the EU market since the database protection was brought into force in the EU.

Also "Ninety-something % of all Western culture produced in the last 100 years is (a) under copyright and (b) has no identifiable copyright owner" So it is all locked up and providing no benefit. It would be more efficient to pay Disney and the like corporate welfare out of tax revenues to keep all the films they want to keep copyrighted forever and let all the rest pass into the public domain after 25 years. Just give the content companies corporate welfare directly because that is what they are getting from the IP system as currently constituted anyway but "at the cost of destroying access to 20th century culture in any fixed form."

Great stuff.