TCS Daily

A Republican Moment?

By Glenn Harlan Reynolds - May 8, 2002 12:00 AM

Too much of a good thing, Mae West once remarked, is wonderful. That seems to be the spirit motivating many in the world of intellectual property today, though the results are wonderful only in that word's original sense: Cause for wondering. And what some of us are wondering is how long it will be before every idea, however trivial, is locked up tight by someone.

Take, for example, United States Patent No. 6,368,227: "A method of swinging on a swing... in which a user positioned on a standard swing suspended by two chains from a substantially horizontal tree branch induces side to side motion by pulling alternately on one chain and then the other." Or United States Patent No. 5,443,036: "A method for inducing cats to exercise consist[ing] of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct. "

Both of these patents were granted by patent examiners who presumably felt that they met the classic requirements of novelty, utility, and non-obviousness. But who are they kidding?

Unfortunately, the problem isn't limited to patent examiners who aren't doing their jobs. America is in the middle of an across-the-board explosion in intellectual property protection, at the behest of well-heeled entertainment industries whose goal is to ensure that no one ever views entertainment without putting money in their pocket. And they're succeeding, in spite of traditions, and the Constitution.

'The Progress of Science and Useful Arts'

It wasn't supposed to be this way. Monopolies were a favorite tool of the Crown before the English Civil War. Perpetually short of revenue, the Crown rewarded its supporters by granting them the exclusive right to sell particular products, from printed matter to playing cards. This was a sweet deal for the Crown - essentially "pork" funded by a hidden tax that bypassed the usual procedures for imposing taxes - and for the recipients, who could charge monopoly prices and use the King's henchmen to put competitors out of business.

It wasn't such a good deal for the subjects, who paid inflated prices and whose ability to enter some lines of work was foreclosed. Eventually this practice was shut down by the Statute of Monopolies, but its abuses were fresh in the minds of those who founded America. (In fact, anti-monopoly provisions exist in many state constitutions as a direct legacy of the English experience).

This attitude also influenced the United States Constitution. When James Madison was drafting the Constitution, the copyright and patent powers were seen as very narrow. Madison and Jefferson corresponded about the evils of monopolies (which both agreed were very great) and the possibility that monopolies might, nonetheless, be justified if they were limited in time and scope and aimed at encouraging the production of new knowledge. Jefferson grudgingly agreed.

The result was a constitutional provision allowing Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This provision was a compromise, intended to avoid the evils of politically awarded monopolies - which were just a way of fleecing the public for the benefit of the well-connected - while providing an incentive for people to create new inventions and writings, something that would enrich everyone. The "limited time" aspect was a crucial part of the deal, since it ensured that after a time everyone would have access to new knowledge. And only new knowledge was supposed to qualify.

Jefferson certainly took this aspect of the patent system seriously. In fact, when he served as Secretary of State, Jefferson examined each patent application personally. (One imagines that he would have been unlikely to approve the methods of swing propulsion or cat amusement set out above.) From Jefferson's time until the last few decades, the intellectual property regime that reigned was one that Stanford legal scholar Larry Lessig characterizes, correctly, as limited and porous.

That, Lessig says, was a good thing. While giving authors (or, more commonly, those to whom authors sell their rights) control over the use of their work might encourage new creativity, keeping that control limited in both time and scope also encourages creativity. Such limits maintain a vast public domain from which people might draw ideas that they could then use -- as Walt Disney did with the public-domain fairy tales "Snow White" and "Cinderella" -- to create new works. They also encourage idea-producers to come up with new ideas instead of simply living off the rent from old ones, as Disney has lived off Mickey Mouse since the days of Calvin Coolidge.

But in recent decades, companies that owe their positions to old technologies have used the money that they made to buy legal protections against new technology. These include patent and copyright extensions, "anti-circumvention" laws that allow proprietary businesses to block fair use of copyrighted material and predatory litigation. It is as if Western Union had succeeded in having the telephone outlawed. "Established companies," Bill Gates wrote in a memo, "have an interest in excluding future competitors."

And that has been the name of the game. The Digital Millennium Copyright Act turned things that had previously been regarded as "fair use" into crimes. It even outlawed discussion of how to defeat copyright protection for entirely legal purposes, like making backup copies. Russian programmer Dmitry Sklyarov discovered how far this prohibition reached when he was arrested while attending a conference in the United States - because Adobe Systems didn't like some software he had written in Russia that threatened Adobe's copy protection.

It all sounds eerily like this description of English history from a recent Note in the Harvard Law Review:

Modern Anglo- American copyright law is traceable to the English Crown's desire in the early sixteenth century to censor the content of literary works. To this end the Crown chartered the Stationers' Company, "an organisation of the printing and publishing trade of London," in 1556 and granted it exclusive rights to publish approved texts. The Crown's commitment to enforce these "copyrights" derived as much from an interest in suppressing political and religious heterodoxy as from a concern that piracy might depress the trade in books. By 1637 governance of the activities of the Stationers (and of renegade printers outside their membership) had fallen to the Star Chamber. The chosen printers happily submitted to the Crown's conditions in exchange for the latter's enforcement of their exclusive prerogatives.

Will the consequences be the same here? They shouldn't - because this is the very result that the constitutional law of copyright and patents, and the traditions that go with them in our society, are supposed to prevent. But the difference between the DMCA's regime and the Crown's practice of licensing printers in the 17th century is growing narrower.

Now Senator Fritz Hollings (D-S.C.), whom some call "the Senator from Disney" for his solicitude toward entertainment interests, has introduced new legislation that would require that all electronic devices contain built-in copy protection equipment, whether buyers want it or not. I would call this an outrageous gift to the entertainment industry, except that it's not a gift at all: They paid top dollar for it, with nearly $300,000 in contributions to Hollings last election cycle and similarly large contributions to the bill's cosponsors coming from the entertainment industries.

But there is more than mere corruption here: Congress has also come to believe that such behavior promotes economic growth. Such belief is part of the spirit of the age.

This is particularly apparent in lower-court opinions on intellectual property cases. The Supreme Court has repeatedly stated that Congress's powers to create and protect intellectual property are not unlimited, but lower-court rulings on intellectual properties read as if they were written by Ms. West herself: In recent years, federal courts seem to have become besotted with the notion that no interest is more important than rewarding the holders of patents and copyrights.

Such things move in cycles, and I suspect that this one is about to end. Thanks to the predatory tactics of the motion picture and record industries, the reputations of intellectual property and the whole sphere of entertainment law have undergone a dramatic change among my law students. Just a few years ago, both were regarded as cool and presumptively good. Now the presumption is the reverse, and the entertainment industries are in disrepute.

It is possible that the courts will bring on this change. The Supreme Court has been enthusiastic, over the past decade, about reining in Congress's too-exuberant use of its limited Constitutional power to legislate. It doesn't take a lot of analysis to recognize that the extension of copyrights beyond a century makes a mockery of the Constitution's mandate that copyrights be for "limited times," and it seems clear that boosting the reward for old inventions does little to "promote the progress of science and the useful arts" where new ones are concerned. One hopes that we will not see calls for the Star Chamber's reinstatement before the courts recognize that too much intellectual property law is far from wonderful.

And if the courts don't do the job, perhaps politics will. Republicans are beginning to notice that the chief beneficiaries of this intellectual property explosion are entertainment industries that support Democrats. Legislation to limit their power would deprive the opposition of funding, while winning the affection of the tens of millions of voters - especially younger, technology-savvy voters - whose slogan is "Keep your grubby laws off my computer." Will Republicans take advantage of this opportunity? That depends on whether they want to be a majority party - or history.

Glenn Harlan Reynolds is professor of law at the University of Tennessee, and publishes the InstaPundit.Com website.

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