Keeping politicians' hands off the Net & everything else related to technology
David Weigel has a good write-up of the National Press Club launch of Larry Lessig’s Change Congress project.
I’m interested in changing the way things work – witness WashingtonWatch.com – and I have no doubt about the earnest good intentions of Professor Lessig. But there are plenty of reasons why the project might not succeed, and indeed might be harmful to discourse in our democracy. They’re articulated well in the comments to Weigel’s post.
I’m reading through the big patent reform bill that’s currently stuck in the Senate. One of the big changes in the legislation concerns the calculation of damages for patent infringement. It reads, in part:
Upon a determination by the court that the showings required under subparagraphs (A) and (B) have not been made, the court shall conduct an analysis to ensure that a reasonable royalty is applied only to the portion of the economic value of the infringing product or process properly attributable to the claimed invention’s specific contribution over the prior art. In the case of a combination invention whose elements are present individually in the prior art, the contribution over the prior art may include the value of the additional function resulting from the combination, as well as the enhanced value, if any, of some or all of the prior art elements as part of the combination, if the patentee demonstrates that value.
I think an economist would tell you that this is completely incoherent. The only way to objectively determine the “economic value” of something is by observing the price it fetches in the marketplace. (The financial markets are currently learning the dangers of trying to compute asset values a priori) If the thing you’re trying to value is similar enough to something that’s commonly bought and sold (say, if your house is similar to your neighbor’s house that just sold), you can use that to get a reasonably accurate estimate of the product’s value. Likewise, if I want to determine the “economic value” of the “specific contribution” of the LCD panel in my MacBook to the laptop’s overall value, I can see what LCD panels with similar characteristics were selling for at the time my laptop was manufactured.
But a patent is not a commodity. It’s not a component of a manufactured product. Rather, a patent is a legal entitlement to sue people who build certain kinds of devices or perform certain processes without the patent holder’s permission. There isn’t any objective answer to the question of how much of a products value is “properly attributable” to the fact that any given patent holder has agreed not to sue the manufacturer. Trying to apportion the value of a product among the patents that apply to it is a category error because a patent’s value in the market place is determined by the leverage the legal regime confers on patent holders. The greater the powers the law gives to patent holders, the larger the monopoly rents they can extract from manufacturers, and the more valuable the patent will be on the marketplace. So it’s completely circular for the law to ask what the “economic value” of a patent is, when the economic value of a patent was created by the legal system in the first place.
Of course, the fact that a legal requirement is incoherent doesn’t mean that judges won’t give it the old college try. No doubt, there will be plenty of “expert witnesses” who will come up with all manner of elaborate methodologies for determining the “economic value” of a patent’s “specific contribution” to a product. A a practical matter, judges will take the passage of this reform bill as a signal that recent patent damage awards have been too big, and will scale back the awards accordingly. That’s what the technology industry wants. From their perspective, it probably doesn’t matter if the requirement is coherent, as long as it gets them the result they’re looking for.
But if you care about the rule of law, it should trouble you that the rules are so incoherent. We should always be concerned when the legislature gives legal force to concepts (like “blight”) that lack a clear definition. The patent system is full of concepts like this, and I think that lack of clarity is a major cause of the problems we’ve been seeing in recent years.
One would be right to worry about DHS Assistant Secretary for Policy Stewart Baker. He’s as smart and cagey as they come, but for all his years at the Department of Homeland Security his security thinking seems not yet to have matured. At the same time, his recollection of the REAL ID Act is showing signs of somewhat advanced age. Let’s walk through some things with our friend, Stewart.
Writing on the DHS blog in support of our national ID law, the REAL ID Act, he intones about the importance of driver’s licenses to national security. “Unfortunately,” he says, “we learned this the hard way. Twice.”:
First, in 1995, when Timothy McVeigh was able to create a fake South Dakota license with ease; all it took was a manual typewriter and a kitchen iron. He used the license to rent a Ryder truck in Oklahoma and destroy the Murrah Federal Building. Then, on September 11, 2001, eighteen of the nineteen hijackers carried government-issued IDs – mostly state driver’s licenses, many obtained fraudulently.
What, actually, did we learn from these stories?
This fall, I will almost certainly be going to grad school in computer science. My options are Rice (where I’d be working with Dan Wallach), Princeton (with Ed Felten), and CMU (with Jim Herbsleb). Felten and Wallach both do research on computer security, with an emphasis on e-voting. Herbsleb studies open source software from a software engineering and economics perspective. I’ve now had a chance to talk to all three of them, and all three of them sound like they’d be great fun to work with. All three of them are interested in the kind of interdisciplinary CS/public policy research I’m hoping to do, although Princeton’s IT Policy Center probably gives it an edge in that respect.
I’ve got a few more weeks to make my decision. If you’ve got first-hand experience with any of these CS programs and would be willing to share your thoughts, I’d love to hear from you: leex1008 (at) umn.edu.
Back in December, I wrote about a good article in Democracy by Beth Simone Noveck, director of the Institute for Information Law & Policy at New York Law School. Her article highlighted the Peer-to-Patent experiment being conducted with the Patent and Trademark Office.
A response has now been published by Andrew Keen, a critic of all things 2.0 heretofore unknown to me – and for good reason. Keen’s response is drivel.
Over at Business Week, I take the “con” side of the question: “When considering job applicants, prospective employers have no business poking around their profiles on social networking sites.” My conclusion:
the bottom line is that a public Facebook page is just that: public. People are responsible for what they post. It’s unreasonable to make personal information available to the whole world and not expect employers to look at it.
Facebook gives users the option of keeping their profiles private, and so does blogging software such as LiveJournal. Users should take advantage of these options for information they don’t want considered by potential employers. But if applicants choose to make information about themselves available to the world, they can hardly object when employers take that information into account in hiring decisions.
My worthy opponent, Greg Fish, seems to have interpreted the question in a slightly strange way. If the question had been “should employers take inaccurate or irrelevant information into account in hiring decisions,” I’d obviously agree with him. But the solution is to take online information with a grain of salt, not to avoid looking at it altogether.
This week over at Net Family News, my friend Anne Collier interviews Dr. Jerald Block, a psychiatrist in Portland, Ore., who has worked with patients suffering from Internet or video game addiction. Dr. Block has developed this mnemonic to identify the ‘SIGNS’ that kids or adults may be on the road to Net or gaming addiction. “If one or more of these questions are answered ‘yes’ AND the person is having interpersonal problems, he/she is at risk,” says Dr. Block. Sadly, I find I am clearly suffering from several of these symptoms. Are you?
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S = Sleep cycle is consistently advanced. Goes to sleep later and wakes later or is tired in the morning.
I = Irritable when not on the computer. Preoccupied thinking about the computer and their activities there (sex, gaming, browsing, tuning the system up, etc.). Can become enraged if told to stop using.
G = Guilty about his/her computer use so tries to hide evidence of 1) game/porn purchases, 2) online activities (deletes cache, uses encryption/passwords, etc.), and 3) logs on secretly, etc.; 4) defensive when confronted.
N = Nightmares. Dreams about his or her gaming/computer use.
S = Social dropouts – people who become more isolated by their computer use. This is seen when there is a consistent pattern of sacrificing real-life relationships to preserve virtual ones. Alternatively, seems to prefer living in virtual worlds more than their real one. These people become NEETs: ‘Not in Employment, Education, or Training.’
Here is the third and (blessedly) final installment of Dan Mitchell’s Laffer Curve videos. (Here’s the first and here’s the second.)
This one is really exciting – hey, it’s all relative – because he takes the Joint Committee on Taxation to task about how they score changes in tax rates.
One sometimes wonders if the drive to return to a less massive state (let alone a minimal one) is worth it, given the low odds of success in the face of what someone (de Toqueville?) warned of: That democracy would last until the voters discovered they could vote themselves a bounty from the Treasury. As Jonathan Rauch adds, we have met the special interests, and they are us.
Another tactic? Hope that the private economy grows fast enough that the size of government remains relatively tolerable? Alas, that government was conceived of as a necessary evil, and thus tinkers around with the foundation of things, the money supply–potentially derailing the whole economic enterprise. There are more problems than spending. John Rutledge presents “the Fed Giveth and the Fed Taketh Away.”
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
