I’m pleased to announce that Alex Tabarrok and I have a new working paper out from the Mercatus Center today, “Public Choice and Bloomington School Perspectives on Intellectual Property.” The paper will appear in Public Choice in 2014.
Here’s the abstract:
We mine two underexplored traditions for insights into intellectual property: the public choice or Virginia school, centered on James Buchanan and Gordon Tullock, and the Bloomington or Institutional Analysis and Development school, centered on Elinor Ostrom and Vincent Ostrom. We apply the perspectives of each school to issues of intellectual property and develop new insights, questions, and focuses of attention. We also explore tensions and synergies between the two schools on issues of intellectual property.
The gist of the paper is that the standard case for intellectual property—that a temporary monopoly is needed in order to recoup the sunk costs of innovation or creation—ignores issues raised by the two schools we investigate.
From a public choice perspective, a temporary monopoly provides enormous opportunities for rent seeking. Copyright and patent owners are constantly manipulating the political environment to expand either the duration of the monopoly or the scope of what can be monopolized. We document the evolution of intellectual property in the United States from its modest origins to its current strong and expansive state.
From a Bloomington perspective, the standard case for IP wrongly treats the commons as a kind of wasteland. In fact, numerous innovations and sprawling creative works occur without monopolization—just look at Wikipedia. Innovation occurs when the right institutional structures are in place, and intellectual property that is too severe can hamper the smooth operation of these institutions. Too much IP can harm as much as too little.
Read the whole thing, cite it copiously, etc.
The Hill is reporting that Rep. Goodlatte, under pressure from “companies like Microsoft, IBM and Apple,” is planning to drop the provision in his patent reform bill that expands the Covered Business Method (CBM) program. Mike Masnick also has commentary.
Julie Samuels explains CBM review:
The “Covered Business Method Review” (CBM) was first introduced in 2011′s America Invents Act. It created, for a limited time, an additional avenue of patent review at the Patent Office. Unfortunately, as drafted, it really was only intended to apply to patents that deal with financial institutions.
CBM is a good program. First, we have long favored the use of Patent Office procedure to challenge patents; it is much cheaper and much quicker than going to court. Second, it allows for more ways to challenge patents than other types of Patent Office review—making it a more robust procedure that promises to knock out more improvidently granted patents. Third, it automatically puts concurrent patent litigation between the parties on hold.
Putting ongoing litigation on hold is no small thing. Patent litigation often costs each side well into the millions of dollars, while CBMs cost just a fraction of that. This means that more people will be in a position to challenge bad patents and fight back against the trolls who wield those patents.
The original Goodlatte bill would have expanded CBM review to patents beyond the financial sector.
From a public choice perspective, it is unsurprising that finance would have better patent law than the rest of the economy: finance is a concentrated industry that can go up politically against and offset another concentrated industry, the patent bar. But non-finance covered business method patents are asserted against all kinds of companies, for practices as banal as retrieving data from a database (not joking: “A method of retrieving information from a database record having plural fields“) or selling things online (“An apparatus to market and/or sell goods and/or services over an electronic network“). The fact that the victims of these patent assertions are dispersed throughout the economy means that they are not organized enough to effectively oppose the patent interests that are lobbying against the CBM program expansion.
Still, it is very disappointing that Rep. Goodlatte is caving to such lobbying. I already thought that his bill did not go far enough; now it goes even less far.
The forum has largely been overtaken by discussion of ICANN’s move to organize a new Internet governance coalition. ICANN representatives have had both open- and closed-door meetings to push the proposal, but there are still many questions that have not been adequately answered.
One important question is about the private discussions that have led to this. The I-stars came out at least nominally aligned on this issue, though there is speculation that they are not all totally unified. Over drinks, I mentioned to an ICANN board member that it rubs a lot of people in civil society the wrong way that the I-stars seem to have coordinated on this in private. He replied that I was probably assuming too much about the level of coordination. If that’s the case, then I wonder if we will hear more from the other I-stars about their level of support for ICANN’s machinations.
More basically, we still don’t know much about the Rio non-summit. It will be in Rio, it will be in May, there will be some sort of output document. But we don’t know the agenda, or the agenda-setting process, or even the process for setting an agenda-setting process.
And strategically, we don’t know how the Brazil meeting is going to affect all of the other parts of the take-over-the-Internet industry in the coming year. The CWG-Internet happens next month, and they will take up Brazil’s proposal from the WTPF. But since Brazil is positioning itself as a leader in this new process (and aligned with ICANN now), what will they try to get at the CWG? WTDC is in March-April. And of course the Plenipot will be in the fall next year. If the Brazil summit is perceived to have failed in any sense, will that make the battle at Plenipot even more intense?
Also, whose idea was it to have a gala without alcohol?
As expected, today at 1pm there was a packed, off-the-books meeting facilitated by the “I-star” organizations (ICANN, ISOC, IETF, and a bunch of groups that don’t begin with I). The purpose of the meeting was to build support for a new Internet governance “coalition.” The argument is that because of the NSA’s global surveillance programs, the US is losing support for its perceived leadership on Internet governance. In order to avoid greater governmental or intergovernmental intrusion into the Internet, the technical community, as signaled in the Montevideo statement, must go on the offensive and create an alternative to such intrusion.
This argument is controversial, to say the least. To what extent does the “offensive” entail creating a top-down institution to deal with Internet policy issues? Neither the technical community nor civil society wants government to be in charge of the Internet, but the technical community (especially ICANN) seems much more comfortable with top-down non-governmental control. I worry that ICANN is going to become increasingly government-like. In any case, we are witnessing a small but historic rift between civil society and the technical community, which have always been on the same side in the war to keep governments off the Internet.
Even if ICANN’s argument makes a kind of sense, it may be reckless to pursue it in the proposed way. It’s now looking like there will be a don’t-call-it-a-summit in Rio in early May, hosted by the Brazilian government, to discuss these issues. Even if ICANN has good reason to believe that Brazil is negotiating in good faith, there is always the possibility that Brazil gets what it wants in the end. They are not likely to just roll over.
I’m open to the idea that we need an affirmative answer to the question of Internet policy institutions. But I’d feel a lot more comfortable if such institutions evolved bottom-up rather than emerging from a grand push, organized secretly by some members of the technical community, to create an alternative. Hopefully with the creation of the new coalition mailing list, everything can be done out in the open from here on out.
Day 1 of the Internet Governance Forum is in the books, and everyone is talking about what will happen on Day 2. Brazil recently announced that it will host a meeting on Internet governance in April. Tomorrow, ICANN is hosting a meeting at 1pm to explain how the April meeting will work.
Everyone that I’ve talked to in the hallways has brought up the meeting in April. No one is quite sure what to expect.
On one hand, Brazil has been part of the coalition that is pushing to do more Internet governance at the ITU. On the other hand, ICANN seems to be a willing participant in Brazil’s scheme. The recent “Montevideo Statement,” issued by various Internet organizations, called for globalizing the IANA function, which means at a minimum removing the US’s special role of maintaining the domain name system’s root zone file.
ICANN wants independence from the US government, and Brazil wants ICANN to be independent from the US government (and possibly dependent on the ITU), so this makes them allies for now.
Bizarrely, NSA surveillance continues to be cited as a reason for Brazil’s actions, although of course the IANA function has nothing to do with surveillance. The IANA issue is mostly about status. Other governments seem to feel slighted by the US’s control of the root zone file.
In any case, tomorrow we may know slightly more about ICANN and Brazil’s schemes.
Last week, the FTC proposed to use its Section 6(b) power to investigate patent trolls. Its clear from the agency’s comment request that what they’re really interested in examining is the practice of patent privateering.
For The Umlaut, I wrote an article explaining what patent privateering is and how it upsets the fragile state of affairs in the software industry.
Because patent trolls are non-practicing, they are not subject to threats of counter-suit and mutually assured destruction. Because they are not members of any SSOs, they do not have any obligation to license on a FRAND basis; standard-essential patents can be transferred to privateers and then asserted against all users of the standard. And because the transfer of patents to patent trolls is often done through various shell companies or other shadowy means, the defendant and the public often cannot know on which practicing software company’s behalf the privateer is working. This means the defendant cannot retaliate through countersuits or a public relations offensive.
I think that understanding how patent privateering actually works and how it disrupts companies’ attempts to innovate makes one much more sympathetic to simply abolishing software patents outright. Given that the practice is not widely understood, the FTC could add value by simply disseminating information about it to a wider audience. I don’t think that the FTC has the authority to regulate patent enforcement, since patent rights are explicitly authorized by Congress, but they can and should send Congress the message that software patents are being used to stifle innovation, not promote it.
The new discussion draft from Rep. Goodlatte is now circulating publicly. Here is a good summary from the EFF of what the legislation would do:
- Heightened Pleading: Requiring a patent holder to provide basic details (such as which patents and claims are at issue, as well as exactly what products allegedly infringe and how) when it files a lawsuit.
- Fee shifting: Requiring the loser in a patent case to pay attorney’s fees and costs. This would make it harder for trolls to use the extraordinary expense of patent litigation to force a settlement.
- Transparency: The draft includes strong language requiring patent trolls to reveal the parties that would actually benefit from the litigation (called the real party in interest).
- Joinder: If the plaintiff is a shell-company patent troll, the defendant could require the real party in interest to join the litigation. Even better, a prevailing defendant could collect attorney’s fees from the real party in interest if the patent troll can’t or won’t pay.
- Staying customer suits: Requiring courts to stay patent litigation against customers when there is parallel litigation against the manufacturer.
- Discovery reform: Shutting down expensive and often harassing discovery until the court has interpreted the patent. This should make it easier for defendants to dispose of frivolous cases early before the legal fees and court costs really add up.
- Post-grant review: The bill expands an important avenue to challenge a patent’s validity at the Patent Office (known as the transitional program for covered business method patents). While this procedure is still too expensive for many of the trolls’ smaller targets, we support efforts to make it easier to knock out bad patents.
These are excellent steps forward in the fight against patent trolls, but I’m still hoping for more. The explosion in patent litigation, both troll and non-troll, is due to the astonishing increase in the number of software patents. Software patents now make up over half of all patents! Software patents are more likely to be litigated than other kinds of patents, including four times more likely than a chemical patent.
Given the extent to which the problems with our patent system are caused by software patents, it is unfortunate that none of the patent reform bills under consideration in this Congress contemplate simply excluding software from the set of patentable subject matter. By all means, slay the trolls. But also go after the source of their power.
Last month, I wrote at The Guardian that NSA surveillance is harming our Internet freedom efforts. Now we have tangible evidence of that. Speaking at the UN Human Rights Council on behalf of Cuba, Venezuela, Zimbabwe, Uganda, Ecuador, Russia, Indonesia, Bolivia, Iran, and China, Pakistan delivered the following statement (video, starts around 52:25). Pay special attention to the last two paragraphs: Continue reading →
On Sunday, the New York Times ran a story by Natasha Singer on the ongoing generic top-level domain (gTLD) expansion. Singer correctly notes that there is a great deal of skepticism that the new gTLDs will add social value. After all, what is the social value of .book when there is already .book.com?
Singer also raises cultural, expression, and competition concerns:
There’s a larger issue at stake, however. Advocates of Internet freedom contend that such an expanded address system effectively places online control over powerful commercial and cultural interests in the hands of individual companies, challenging the very idea of an open Internet. Existing generic domains, like .net and .com, overseen by Verisign Inc., a domain registry, have an open-use policy; that means consumers can buy domain names ending in .com directly from retail registrars like GoDaddy. With a new crop of applicants, however, Icann initially accepted proposals for closed or restricted generic domains, a practice that could limit competing views and businesses.
It’s true that there is concern over “closed generics,” but I think there is a deeper problem than anti-competitiveness that could emerge from TLD expansion. Continue reading →
Over at The Switch, the Washington Post’s excellent new technology policy blog, Brian Fung has an interesting post about tethering and Google Glass, but I think he perpetuates a common misconception:
Carriers have all sorts of rules about tethering, and sorting through them can be like feeling your way down a dark alley. Verizon used to charge $20 a month for tethering before the FCC ruled it had to allow tethering for free. Now, any data you use comes out of your cellular plan’s overall data allowance. AT&T gives you a separate pool of data for tethering plans, but charges up to $50 a month for the right, much as Verizon once did.
Fung claims that due to the likely increase in tethering as devices like Google Glass come to market, “assuming the FCC didn’t require all wireless carriers to make tethering free, it’d be a huge source of potential revenue for companies like AT&T.”
In fact, the cost of tethering on AT&T is not very different from the cost of doing so on Verizon, which means by definition that AT&T is not likely to get a windfall from increased use of tethering. It’s also evidence that the FCC tethering rule for Verizon doesn’t matter very much.
Continue reading →