Articles by Solveig Singleton

Solveig Singleton is a lawyer and writer, with ventures into ceramic sculpture, photography, painting, and animal welfare work. Past venues for her policy work include the Cato Institute (mostly free speech, telecom, and privacy), the Competitive Enterprise Institute (mostly privacy and ecommerce), the Progress and Freedom Foundation (mostly IP). She is presently an adjunct fellow with the Institute for Policy Innovation and is working on a new nonprofit venture, the Convergence Law Institute. She holds degrees from Cornell Law School and Reed College. Favorite Movie: Persuasion. Favorite Books: Dhalgren; Villette; Freedom and the Law. Favorite Art: Kinetic sculpture--especially involving Roombas. Most obsolete current technology deployed: a 30 yr. old Canon AE-1. Music: these days, mostly old blues, classical guitar, Poe, Cowboy Junkies, Ministry. Phobia: Clowns.

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John Calfee on Government-Sponsored Innovation

by Solveig Singleton on June 16, 2008 · 24 comments

I have in past years learned a great deal from reading John Calfee’s book “Fear of Persuasion,” on the consumer benefits of advertising. Now he is writing on drug development in “The Indispensable Industry,”

http://www.american.com/archive/2008/may-june-magazine-contents/the-indispensable-industry

He considers, one after another, various proposals to fund drug development using public funds, prizes, or other plans. He writes:

There are two problems with government and nonprofit R&D as a substitute for the traditional for-profit industry. One lies in what the nonprofit sector has not tried to do; the other lies in what it has tried to do.

We have to remember that no laws, regulations, or traditions have prevented the public research system from inventing the drugs we need if it was really capable of doing that and no one else was. In principle, publicly funded drug research can run all the way from basic research through clinical trials to FDA approval and, if the believers in this approach are correct, it can be conducted at reasonable costs including the inevitable losses from drilling dry holes.

But let’s look at the record. If we really had a reliably productive government-nonprofit drug development system, we should have seen its fruits by now. Those fruits would have arrived in such areas as the testing of off-patent drugs with great potential and the creation of new drugs where profit incentives are inherently weak because of inadequate intellectual property laws. We should have seen, for example, clinical demonstrations of aspirin for heart disease and cancer much faster than actually occurred…

The piece is well worth reading in its entirety.

24 comments

Odds and Ends of Research–Mostly Odds

by Solveig Singleton on May 23, 2008 · 6 comments

From an interesting collection of economists, including L. Vernon Smith and Cass Sunstein, a paper calling for changes to facilitate the growth of prediction markets.

Another paper on happiness research and cost-benefit analysis. “Opportunity cost, Opportunity Cost!” shrieks Ludwig von Lachman from beyong the grave.

Here is a more questionable contribution from the more mainstream Herbert Hovenkamp. ., “Innovation and the Domain of Competition Policy” “U Iowa Legal Studies Research Paper No. 08-07 . The paper advocates the more expansive use of antitrust law in intellectual property disputes, on the grounds that IP law has been tainted by rent-seeking, and that antitrust law has not. Granted, that the antitrust statutes have not been much revised. So the lobbying action is at the DOJ, the FTC, and pretty much everywhere else rather than in the halls of Congress. And yet more action in the offices of the countless economic consultancies that have sprung up, spouting reams of game theoretic nonsense in the pursuit of fat expert witness fees. And the antitrust bar. Dr. Hovenkamp has been fortunate to remain oblivious to it all. See George Bittlingmayer at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=344040.

Another curiousity is this paper by Dr. Richard Gilbert, proposing that “innovation” as such also be subject to antitrust scrutiny when the distribution of market power is interesting. Talk about subjecting ordinary business conduct to a chilling and error-prone regulatory regime. I read it through wondering if it was a clever reductio ad absurdum of the whole enterprise, but in the end when there was no punch line delivered I concluded sadly that the author was serious. Gilbert, Richard, “Holding Innovation to an Antitrust Standard,” 3 Competition Policy 47 (2007). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987322

6 comments

From Indep Women’s Forum–Update on Rights

by Solveig Singleton on May 14, 2008 · 11 comments

From Independent Women’s Forum, “Despite praise of a Constitution that protects the rights of Afghan Women, Afghan women continue to suffer abuse from men and society in general. Halima Karzai, Associate Director of International Policy for the Independent Women’s Forum, has written a powerful piece on the continuing problem of oppression and violence against Afghan women before and after the Taliban.”

Such reports are disturbing at so many levels, one hardly knows where to begin. First there is the comparative lack of attention to this issue by the public, the press, and in the political sphere; this appalling abuse has become background noise to which we are almost accustomed. Second there is the puzzle of how such practices begin and spread and are so hard to root out. One would think that the abuses would be instantly recognizable as morally unthinkable. One would think that they run so counter to ordinary primate biology, in which males and females have somewhat different roles and scuffle but nonetheless remain part of a whole cooperative group, that there would be some natural resistance to them. One would think that local observers would recognize the value of a more inclusive society in which their children would be more quickly lifted out of poverty in an economy enriched by the education and intellectual capital of the whole population. As in apartheid South Africa, exclusion is not only wrong, but it denies the economy entrepreneurs, managers, technologists, teachers, and other seeds of growth.

Something here has gone sadly wrong. It rather puts concerns about the exact scope of the rights of makers of mashups in a new perspective.

11 comments

Larry Magid on Age Verification

by Solveig Singleton on May 6, 2008 · 14 comments

Larry Magid in the San Jose Mercury News on the limits of the age verification proposals being discussed to protect kids online. A quote:

Some attorneys general want to see the electronic equivalent of showing an ID at the door. . . But Sentinel Chief Executive John Cardillo told me age- and identity-verification schemes typically rely on credit reports and other data that is accessible for most adults but generally not available for people under 17. One could, in theory, access school, birth or Social Security records, but for a variety of good reasons, these databases are off-limits to private entities. . . . [E]even if age verification is possible, I still question whether it’s desirable. I worry about some teens – including victims and youths questioning their sexual identity – being harmed because they’re denied access to online support services that could help them or even save their lives.

Arguments concerning age verification and showing harm from restricting minors’ access to the Internet were made in challenging provisions of the Communications Decency Act restricting “indecency” online back in 1997/1998. At the time, age verification was judged impracticable, and the Supreme Court’s ruling upholding free speech rights online in some part rested on this conclusion. If age verification proposals now move forward, the issue might be revisited again.

Free speech rights are some of the healthier provisions of the Bill of Rights protection. But the area of minors continues to be troublesome. The challenges to the “indecency” laws are made on behalf of members of an adult audience; they are in effect restricted to child-safe material even though the law only is intended to protect kids. Almost everyone seems to accept without question the premise that such challenges may not be brought on behalf of the children themselves. The lack of attention to this point seems to stem, first, from observation that of course children do not have rights to free speech as against their parents or other private caretakers. I tell The Grub to hush, he must hush, or I will give his racetrack a time-out. But this power of parents and their delegates is a common law matter. It ought to have nothing to do with the resolution of the constitutional question, regarding the free speech rights of kids as against the government.

One now contends with a second argument: It is common sense that children (differently for different ages) must have different rights than adults, they are not all at the same stage of development and so on and so on. Again, the same objection. One is not dealing with the common law of contracts here. This has to do with constitutional rights. The constitution says “Congress may make no law….” It is a restriction on the power of government. It gives government no special powers with respect to minors. If in fact Congress has such powers, where does it get them? If it can get them somewhere else, what is the limit?

Imagine if one made the “children can’t possibly have the same rights as adults” with respect to other provisions of the Bill of Rights. The anti-establishment clause for example. Government may not establish a religion for adults, but if we read exceptions into the Bill of Rights for children, evidently it *can* establish such a religion for children? That is nonsense. Similarly the right against self-incrimination. It is not okay for the police to torture adults, but if we are to read exceptions in the Bill of Rights against children, evidently it is okay for the the police to torture children? More nonsense. May Congress take the property of children without compensation? Subject them to cruel and unusual punishments? It seems to me that if the answer to any of these questions is “no,” then it must be “no” to all of them (including, to the outrage of many, to the right to bear arms and the right to trial by jury). Congress has no more powers over kids than it has over adults. May the next free speech challenge to age verification will be brought on behalf of the kids themselves.

Much hemming and hawing and lawyering will follow. I know, I know.

14 comments

Fair Trade: Does it Work

by Solveig Singleton on May 5, 2008 · 6 comments

This analysis from IPA in Australia suggests not.

http://www.ipa.org.au/publications/publisting_detail.asp?pubid=822

This analysis draws on two recent studies of fair trade to conclude that is it just not what it is cracked up to be. One example of the studies findings:

from the US-based Transfair, fair trade advocates conceded that fair trade producers provided lower grade coffee for sale through the fair trade system. Fair trade producers sell their best coffee on the free market when it commands a higher speciality price than fair trade. Producers then keep their lower-grade quality through the fair trade system where they receive a guaranteed price. They do this because there is an oversupply of fair trade coffee and an undersupply of buyers for fair trade coffee.

The IPA analysis concludes, that “new studies demonstrate that the evidence supporting fair trade’s contribution to development for the world’s poor is dubious, at best. The studies also show that fair trade creates a number of problems for fair trade and non-fair trade producers.”

6 comments

Shape of Libertarian IP Debate: Moebius Strip

by Solveig Singleton on May 5, 2008 · 18 comments

TimLee noted below some of the divisions of the libertarian IP debate into rights advocates and utilitarians.

The utilitarian/individual rights dichotomy is fascinating, but seems to me one can only push it so far before it collapses (I think it was Hayek who explores this collapse in more depth, too lazy to look it up right now). That’s because

a) classical liberal versions of utilitarianism tend not to discount the experience of single individuals as heavily as do more Benthamite utilitarians or law-and-econ game theorists (two examples, they rank consensual transactions highly, and Austrian-influenced thinkers would warn one to avoid of interpersonal utility comparisons);

and b) at bottom, no one is likely to give a fig for a set of individual rights that on the whole tend to lower standards of living, such that more babies with cleft palates are allowed to die, and so on. [UPDATE: hmmm, I think that is overstating the case more than a little, people do tend to have a good bit of empathy for one another, but the general point is just that, the case for individual rights had better not run *against* raising standards of living as a general matter, or it will lose].

One of the strengths of classical liberalism has always been the twining together of concern about the growth of wealth and the shrinking of poverty with concern about rights—challenges to the Corn Laws, challenges to Jim Crow laws, and so on. The fact that the two twine together is not a coincidence. It is because *if* individuals have certain rights, natural or otherwise, it is because of some key features of human beings and human life in communities, which includes economic life. At bottom, the philosophical roots of both economic thinking and rights thinking will be closely related (e.g. Locke).

The reason that IP policy debates tend to run utilitarian is not just a result of the personal mindsets of the participants, either. One is dealing with tricky stuff. Many libertarian issues are “easy,” not in the sense of being “easy” as a political matter or of getting past people’s preconceptions, but in the sense that they do not require us to revisit the basics. Few of the arguments about free trade, price controls, education, social security, indecency, health markets, tax policy, involve reconceiving of the boundary lines of contract and property that constitute markets *and* that define individual rights within those markets. IP arguments—rather like arguments about abortion–do involve arguing about where those boundaries go. What kind of rights can one have in information? Where should the boundaries be exactly? How far can the analogy to property be carried? When one is arguing about the details of where the boundaries of rights should be, well, it is tricky to make arguments from individual rights because such arguments will tend to beg the question.* One generally cannot assume the boundaries in dispute.

Because the boundaries are in dispute, furthermore, this shifts one to thinking about what those boundaries could be at some point in the future, especially, in the very long run. Then, Rawlsian veil stuff happens. Individuals tend to fade out of this picture—they themselves no longer are clear where their own interest lies, and must think about rules in the abstract. (“Constitution interest” as opposed to “action interest”). Will they be producers or consumers? Buyers or Sellers? Minority or majority? Where will the technology go? The best consensus at that point will form around rules that seem to give everyone a fair shot (more Hayek). If that shifts the boundaries of rights, that’s okay—so long as it is not retroactive, and within bounds (and one can argue about where those bounds are, too, on and on , blah blah blah).

Another thought. Some of the IP debate seems to be about individual rights, but it is really about individual interests—long or short run. Many advocacy groups are strong on *short-run individual interests* in access, low-cost, and so on, and individual rights become a vehicle for advancing that (I wonder if underlying some of this is that there are a lot of Act Utilitarians, as opposed to Rule utilitarians, kicking around here). Many tech companies are oriented to serving those interests. That’s fine. But if rights only track short-run interests, we’ve got a crummy theory of rights.

Stopping now.

18 comments

Substance, Procedure, Enforcement… Offspring

by Solveig Singleton on May 1, 2008 · 2 comments

An incident at my son’s preschool yesterday serves as a good example of a problem I have sometimes pondered relating to IP–that is the extent to which substantive rules are adapted and sometimes distorted in response to difficulties or limitations on the enforcement end. An example, the tendency to boost the penalties for IP related offenses in an effort to compensate for low enforcement rates.

There is substantial room for disagreement on whether and when this kind of substantive adaptation is legitimate. One might think, at first, that one should never do that… consider the following example, though: Under the law of the Icelandic Commonwealth, the penalties for killing someone were much greater if one did not report the killing to one of the next three households one passed. A nice way to solve an evidentiary problem, and what is wrong with it, really, if otherwise disputes about killings would go on forever in the face of endless doubts about who was responsible?

Now, to preschool. The preschool classroom is well populated and while the little horrors are closely supervised they aren’t watched every minute. So any altercation that is not witnessed in full by a teacher can be resolved “correctly” only on the assumption that three and four-year-olds can be persuaded to talk about something other than princesses, guns, tadpoles, or dinosaurs. This is next to impossible. Yesterday the Grub was one of three small boys called to a conference at the “Peace Table” to settle down and talk over their differences. What happened? No one knows. The Grub told me gravely that he hit E, and when asked why, said it was because E. hit him. E. is a sensible chap a full year older and unlikely to hit absent provocation (unlike budding sociopath K.), provocation that The Grub is capable of supplying, but no testimony on this point was forthcoming. This morning The Grub told his father, in response to skilled cross-examination, that he had pushed E., still with the same grave honest face. What actually happened? How was the third little boy A. involved? A. is a scamp, so probably he was involved somehow, but this cannot be admissible. Pushing further only lead to bubbles being blown into milk. So the substantive rules we are left with as a result of such situations are mere pretty phrases, such as “play nicely with your friends.” This won’t do, and how The Grub is to learn that it is okay to defend himself but not attack in this context I do not know. So far, therefore, the main things he seems to have learned in preschool are 1) how to make a fist 2) how to use his sharp little elbows to keep his place in a crowd 3) what a transformer is. Luckily we have a few years left. If I were having another child, I would just let them scuffle away and trust that he would learn not to hit because it leads to being hit back, with some adaptations to avoid a doves/hawks problem. Just an experiment, to see how that one would turn out.

2 comments

Patents and the Poor–Notes from Abroad

by Solveig Singleton on May 1, 2008 · 4 comments

A link to “The poor stand to lose from Anti-Patent Crusades,” by Franklin Cudjoe, out April 30, 2008, with a free-market think tank in Ghana.

http://en.afrik.com/article13423.html

A selection: Patents are actually a critical part of the solution. They protect the financial incentives that drive pharmaceutical companies to create innovative medications in the first place. It takes an average of US$800 million and 10-15 years to bring a new drug to the market. Patents ensure that pharmaceutical companies can recoup that enormous investment.

If countries start breaking patents, though, firms lose out on sales. And they’re less able to finance the development of new cures. That’s a blow to the public health efforts of all countries, rich and poor. Ghana’s
health Minister told me that he fails to see how people could hold antagonistic positions against pharmaceutical companies, because in his own words “if drugs are being made, then people must be sick somewhere-it is not for charity”.

4 comments

Thoughts on Apple, MBA’s, and Distribution

by Solveig Singleton on April 30, 2008 · 2 comments

An interesting analysis of Apple and competing distributor and network business models appears on “Going Private.” Agree or disagree? Agree with about half.

One point that I thought worth noting; the allegedly pernicious influence of MBAs laden with theory. This runs counter to the classic free-market (Austrian-school-influenced) model of the entrepreneur taking advantage of local knowledge and designing from the bottom up. But the latter could be, in the long run, a better description only of the more successful contenders, the ones whose actions are rewarded. At the starting line, a more motley crew will be assembled, and markets will not necessarily bring them to account immediately or in an obvious way for mediocrity. But they will do so eventually. By comparison, regulators may never bear any consequences for poor decisions at all.

2 comments

Lady Chatterley’s Lover

by Solveig Singleton on April 22, 2008 · 11 comments

I’ve been rereading Lady Chatterley’s Lover lately, and also reviewing some of the literature about it. The central theme of this book, the rootedness of mankind in his physical body and in “animal” pursuits, is still very fresh today and well worth thinking about (but one notices this only if one is not distracted, as I was when much younger, with looking for the naughty bits, which are a) not very naught b) include not-so-bad descriptions of female orgasms… how does DHL DO that?)(there is a consensus among critics that Clifford’s paralysis is a flaw in the book that makes Lady Chatterley’s departure “vulgar;” I cautiously disagree–that is, if it does make if vulgar, that is part of the point). And I’d not realized before that the book set such important free speech precedents. The litigation surrounding the publication of the book in England and in the United States marked a significant shift by the judiciary of the lower courts towards considering the actual community of readers in conceiving of “community standards.”

If one considers recent history, one might get the impression that the movement of tolerance for offensive speech was steadily growing greater. That is, if one considers only the nineteenth and twentieth centuries, it looks as though tolerance grows continuously, perhaps due in part towards a market mechanism. Producers and publishers continually push the bounds of the scandalous outwards, hoping to gain attention for their works. The public becomes continuously more jaded. If this process continues indefinitely and courts actually pay attention to community standards, this means that the content of what could be considered “obscene” or otherwise offensive steadily shrinks.

Whether this perspective can be maintained, though, depends very much on what period of history one chooses to start with. Starting in the nineteenth century with the Victorians biases the outcome considerably. This was a world in which young wives were permitted to die of veneral disease contracted from their husbands without anyone ever explaining to them how it could be prevented, or even what was wrong with them. Naturally taking this as a starting point of comparison, the category of what is taboo to speak of is likely to seem to shrink, it could hardly grow much larger.

Starting with the ancient Greeks, though, who were forever painting artistic images of couples frolicking about in various positions on their lamps and other household goods, what is taboo seems sometimes to shrink, and sometimes to grow, within certain parameters. One starts to wonder if certain visceral responses to sexual content are not only learned or cultural, but to some extent hardwired, which would be natural for mammals, which we are, after all (back to Lawrence’s thesis). If this is true, does this justify censorship, or make it inevitable? I think not. That we may react to certain imagery as mammals does not dictate that we must react as censors, by empowering the government to control those things. The risks of delegating that sort of control are too great.

But it does explain, in part, why the battle for free speech is so difficult.

[update: Thinking about this issue further, I realized my discussion of the free speech rights of children could be misinterpreted to cast me as an advocate for eight-year-olds reading some really appalling stuff. No, no, that’s not the point! (Don’t forget, the parents are still in charge). There is a larger issue, whether the government has more expansive powers to control the speech or religion of children than it does of adults, and an interesting question of constitutional interpretation… how some things that people just seem to assume about reading the constitution turn out to be problematic…]