Over at Convergences I consider the writings of Polk Wagner, beginning thus:
Polk Wagner has written some worthwhile papers on law and technology. I heartily recommend those that support points on which we agree, such as The Perfect Storm: Intellectual Property and Public Values, 73 Fordham L. Rev. 1107. 2005. This paper notes how the de facto balance between copyright and fair use has shifted over the years, and that in key respects copyright has lost, not gained, ground, and also noting that fair use is far from being the only key conceptual or practical limit on copyright.
But his paper “On Software Regulation,” is a bit muddled. It may not be Professor Wagner’s fault, for the article was written following up on the “code is law” meme, which is at bottom a rather unhelpful observation. If “code is law” then so is everything else—the laws of physics, architecture, road design, engineering, biology, the laws of physics, religion, education, insect swarming patterns, families, and so on. All of these things affect human behavior and shape and regularize society. My complaint with “code is law” is not that is not true, in a sense—but that it is very unhelpful in understanding any real problem. Many institutions and systems affect human behavior, but they do so in different ways. It is understanding the differences that will be the key to resolving any serious human problems.
Consistent with this, Professor Wagner begins by noting that “code is law” tells us nothing about how code and law relate. But he restates the view that software code constitutes regulation. Software “regulates” in the sense that it makes human conduct more regular and affects the public. But is it really much like “regulation” enacted through a legal process by Congress or the FCC, or even like law described by courts? Certainly not. But the paper’s description of the differences is oddly incomplete.
For the remainder, visit Convergences here.
Over at “Convergences,” I write on the origins of the idea of a “public option” for health insurance. In part, I note:
At a superficial level, the “public option” for health care is both appealing and puzzling. From a competition policy standpoint, the entry into the market of a subsidized competitor offering a wide array of benefits certainly might put downward pressure on prices as well as easing humanitarian concerns about access. Equally obvious, though, are objections. What mechanism of accountability would exist to ensure that this subsidized entity is well run? It cannot be allowed to go bankrupt; nor is it likely that unhappy customers would have much leeway in suing it. How would it avoid driving private insurers out of the market for low-end service entirely? How much of a subsidy would it get, and how is this to be funded?
Since the party and administration that sponsored this proposal are associated with the intelligentsia, however, people hoping to improve the health care system probably felt entitled to trust that these questions had good answers. Somewhere, someone deep in the bowels of the brain trust had considered these issues. Curious about this, I found myself reading one of the more serious works to address the public option, a paper by Randall D. Cebul, James B. Rebitzer, Lowell J. Taylor and Mark E. Votruba entitled, “Unhealthy Insurance Markets: Search Frictions and the Cost and Quality of Health Insurance,” identified as NBER Working Paper No. 14455, from October 2008.
Read my whole piece, here.
Over at Convergences I ponder a version of Mark Lemley’s argument to the effect that confusing patents tied up in administrative disputes are in effect the same as no patents. I write:
I recently read “Patenting Nanotechnology” by law prof Mark Lemley. Excitement about (and fear of) nanotechnology seems to be waning rather than waxing. The article nonetheless includes a curiously paradoxical line of argument about intellectual property that I think is worth setting out in detail.
Presently there is some concern that there are already too many overlapping nanotechnology patents, and/or too many nanotechnology patents that cover basic research concepts as opposed to actual useful products. A number of observers have warned that these patents could interfere with ongoing nanotechnology research. This is a familiar theme over the past couple decades of patent scholarship.
Of course, patents (with all their warts) were around during the nineteenth and twentieth centuries, too, when a lot of important advances were made in technology. All kinds of things from sewing machines to radios were developed, and it all worked out okay in spite of much patent nonsense being involved.
Now, here is where Mark comes up with a twist on the familiar arguments. To help make his paper about nanotechnology more interesting, he seems to want to build up the case that nanotechnology is different from earlier technologies, so that the patent system might cause problems for nano that they did not cause for earlier technologies. So he goes through each earlier technology in some detail, and argues that in each case, in effect, for each of these key earlier technologies, patent protection was in effect non-existent. In the case of sewing machines, for example, the patents were tied up in litigation; in the case of radio, WWI intervened and the patents were taken over by the government.
Therefore, he argues, nanotechnology will be the first important technology that is in effect actually protected by patents. He goes on to conclude that there is no reason to worry about this yet. This conclusion seems sensible enough. So… what?
With his argument that previous key technologies were in effect devoid of patent protection as a practical measure, even though they were patented, well, he’s created a mythical monster, the worm who eats his own tail. I don’t think he fully realizes this, so I will play with the idea a little bit.
For the results of my exploration, kindly visit Convergences.
On October 1 I attended a panel discussion on the use of technology to restrict the illegal transfer of copyright-protected content online. The panel talked about a new French law requiring ISPs to block users who had “three strikes” against them for illegal transfers, recent developments in watermarking and fingerprinting, and the future of fair use.
I blog further at Convergences and also supply sketches for your amusement. For it is important that you be amused.
The deadline for filing amicus briefs in support of the Federal Circuit’s attempt to trim back business method patents in Bilski passed on October 2. Many briefs have been filed, and much fuss has been made in the tech community, for business method patents are linked to the problem of software patents. Many software patents, such as Amazon’s 1-click order patent, are for business methods.
If the courts ultimately trim back business method patents, will this take some of the pressure off both tech and the patent system? Not as much as many in the tech community or the patent community would hope, for reasons I examine below. Patent reform is now being driven by business constituencies, and these constituencies are not good at all at working on big picture institutional problems. There, in short, is a not-seeing-forest-for trees problem.
Continue reading →
I ponder Canadian health care and directions for U.S. reform on the Convergence Law Institute Blog here.
The Obama administration has been greeted with enthusiasm by scientists who see the potential for “research-based policy.” Reason, not ideology, will govern. The New Scientist, among other zines, headlines “Let Science Rule: the Rational Way to Run Societies.” (May 28, p. 40-43) This is part of a larger theme: Behavioral economics is taking off. Continue reading →
At George Mason University a while back, I was treated to a preview of some economic research; this time, a paper studying whether or not consumers read the fine print. “Does Anyone Read the Fine Print? A Test of the Informed Minority Hypothesis Using Clickstream Data.” Authored by Yannis Bakos, Florencia Marotta-Wurgler, and David Trossen. The conclusion: in online software sales, no one does. Barely anyone. Less than one percent.
Well, of course not. Continue reading →
Scott Gottlieb reports in the WSJ online on provisions in the fiscal stimulus package now before the House that would restrict the drugs doctors could prescribe based on cost effectiveness. This entails top-down assessments not only of how good the drugs are, but what an additional year of a person’s life is worth. Rather ironic, in an environment where some argue in favor of a government controlled health care system because health care is a “right.” His article also points the way to a better solution–let private companies that study the effectiveness of treatments publicize the results.
I have not looked at the details of this plan, but it seems to me that especially if it does not leave patients the option of paying out of pocket for alternative treatments, it is ripe for consitutional challenges, under Griswold that protects rights to use contraceptives, for example. It will be interesting if restrictions on speech, prohibiting doctors from telling patients that alternative treatments are available that they are not permitted to prescribe, eventually accompany the the attempt to restrict prescriptions.