Populist Disconnect and the Whittling Away of IP Rights

In Joe Allen’s recent column Does Innovation Lead to Prosperity for All? he ended with a quote by Alexander Fraser Tyler from The Decline and Fall of the Athenian Republic, which suggested that a democracy cannot continue to exist once the majority realizes they can vote for candidates that promise a never ending stream of benefits. Eventually, the result of politicians handing out money and benefits for votes leads to a collapse as the result of unsustainable fiscal policy.  Allen quizzically ends by stating that this couldn’t ever happen in the United States, could it? Sadly, we know it is happening in America.

As of the writing of this article the U.S. national debt is over $17.6 trillion, which if you write out in long form is $17,600,000,000,000.00. To put this into perspective, if you wanted to count to 1 trillion and you counted a number ever second non-stop without sleep it would take you 31,546 years, which means that to count to 17.6 trillion would take you over 555,209 years. Explained another way, the height of a stack of 1 trillion one dollar bills measures 67,866 miles, which means that 17.6 trillion one dollar bills would be nearly 1.2 million miles. To put this into perspective the Earth is only on average 238,855 miles away from the moon.

Saying the United States has a spending problem is an extraordinary understatement, but spending continues. The public demands spending and so many people now erroneously believe that the way to improve the economy is for the government to spend ever more sums while at the same time regulating business like never before. Taking the foot off the throat of the private sector and reducing government spending has been a time tested and effective way to stimulate activity, create jobs and improve the overall economic condition of the U.S. economy. So there is an extreme disconnect between historical reality, what the people want and the policies America is pursuing.

A populist disconnect is hardly anything new. Most people will always say they want more government spending and lower taxes, which simply cannot happen while job killing policies are pursued and nothing serious is done to bring high paying manufacturing back to the U.S., which could be accomplished despite popular mythology to the contrary.

Increasingly this new brand of disconnected populism is found within the intellectual property world. Indeed, the Tyler quote above about a democracy falling when the majority realizes they can vote themselves free stuff is profound, and fits very neatly with what we are seeing play out with respect intellectual property policy. Copyrights are no longer respected at all and people believe, or convince themselves to believe, that stealing the original content of others is their god given right.

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For example, over the last several months I have had to send DMCA takedown notices to the same person repeatedly. He is under multiple mistaken beliefs, including the belief that if something is freely available to be read on the Internet it is also freely available to be copied and published by anyone. He also believes my only recourse is to send him DMCA notices and that he is somehow immune from copyright infringement liability through lawsuit as long as he takes down infringing articles when he is notified. Of course, neither views are true, nor is his belief that his business insurance will protect him against what is clearly repeated, willful copyright infringement; virtually all insurance policies exclude coverage for willful and intentional acts. Still, as utterly ridiculous as these misperceptions of copyright law are they are sadly commonplace. Either people really don’t know, they are blissfully ignorant, or they have convinced themselves that what they are doing isn’t a problem and/or that there will be no consequences for their actions. The indifference of the public who ostensibly wants original content is working to make it very difficult to profit from creating original content.

Stealing originally created content is extremely problematic, whether it is a blog article, a newspaper article, a book, painting, photograph or movie. If you search the Internet for practically anything you will be inundated with the same text over and over without really finding useful answers. Of course, the websites that engage in widespread plagiarism, which is just a less judgmental way to say “widespread copyright infringement,” are reaping the economic rewards of their stealing while making it increasingly difficult for those who actually create original content to survive. The infringer business model is frequently to simply copy from others who don’t have the means or ability to seek redress, and Congress is held hostage by protesters who don’t want to have to pay for free original content.

The sad reality is that if you create original content it is not easy to police what others do with your content. The law says you don’t have to do anything to prevent copying, but if you don’t you will find yourself resorting to an increasingly ineffective DMCA notice campaign, hosts that refuse to terminate the accounts of repeated copyright infringers, and ultimately you have to sue. But if you didn’t file for a federally registered copyright you are prohibited from suing for infringement, and if you didn’t register your copyright within three months of creation or publication you cannot seek your attorneys fees from the entity that stole your work and forced you into the courtroom.

It should be simple enough for everyone to see, even the most ignorant members of the general public and clueless Members of Congress, that if we want more original creation those who are engaging in the creation of original content must be adequately protected. They system to seek redress cannot be unworkable. It is also time to realize that content creation is increasingly being done by individuals and small businesses. Furthermore, the fact that large movie studios and so-called evil corporations will benefit from an update of the copyright act cannot be relevant. Streamlining copyright laws and giving content creators of all sizes adequate rights and meaningful tools to protect the creative fruit of their labor is essential if we want to actually have original content created.

This populist duality has also fueled the academic push against patents. Some academics ignore the overwhelming evidence that supports a strong patent system (see here and here), and despite the facts that conclusively demonstrate the effectiveness of Bayh-Dole (see here, here and here) they question whether we should return to the days when universities did not own patents and that practically and realistically meant it was impossible to license innovations created by universities. How those academics can call themselves academics when they have such disdain for the truth, facts and history is beyond me, but sadly these academics who obviously have an ideological agenda are working feverishly to destroy the patent system.

These academics characterize every discovery and innovation as something that would have happened soon enough and hardly worthy of protection. Of course, the very purpose of the patent system was to prevent that “wait around, its inevitable” approach to innovation. The purpose of the patent system was initially and has been until at least recently to foster innovation, which patents undeniably do, by encouraging investment. They system is set up on capitalistic principles to provide economic incentive to achieve innovation faster than it would have happened at whatever lethargic and unpredictable pace it may have happened absent incentive. So these false academics complain about the very purpose of the patent system and then pretend that they are not challenging the system as a whole, which is extraordinarily intellectually dishonest.

Further, many academics and the liberal groups that support them, such as the ACLU, will challenge patents 10, 15 or even 20 years after the patent application was initially filed and at a time the innovation is now ubiquitous. Rather than celebrating a ubiquitous innovation, which became so widespread because it was transformationally important, they pretend that the fact that everyone uses the innovation means the innovation was inevitable and obvious. Once upon a time we actually encouraged paradigm shifting innovations that would one day become ubiquitous because that is the type of innovation we specifically and undeniably want to reward. The Supreme Court has even clamped down on the law of obviousness over the last decade with express intention on preventing minor advances from being patented. Yet, many academics argue that not only should minor advances be obvious, but important, major, paradigm shifting innovations shouldn’t be patentable either. Such a position would be laughably comical if the Supreme Court weren’t being duped into following this path like lemmings off a cliff.

Wouldn’t it be wonderful if spending every penny you have in your bank account and maxing out your credit cards would lead you to economic prosperity! We openly laugh and mock religious cults when their leaders require cult members to turn every penny over to the “church,” yet the majority of people in America seem to think that spending more and more means that things will all work out and the debt will never need to be paid.

Similarly, the average Joe and supposedly learned academics think that they can remove all useful exclusive rights and original creation, whether in the form of copyrighted creations or patented inventions, and creation will still simply happen. We know from history that countries without exclusive rights based on a capitalistic foundation experience no domestic creation of any kind. Why would anyone every think that adopting solutions that have failed everywhere they were ever implemented would lead to success in America?