Back from the Abyss

Many contemporary IP scholars have come to lament Congress’s grant­ing progressively stronger IP protection to each new generation of inno­vators, and the feeling is hardly restricted to the legal world.

Many of these critics’ points are beyond dispute. Every revision of both the Copyright and the Patent Acts has strengthened the rights of the inno­vator. Congress has never surveyed the entire terrain and decided that it may have gone too far (although it has provided an occasional minor clarification). We have never seen either statute change because Congress decided that innovators were being overcompensated, that the over­compensation was deterring others from innovating, or that the public was paying too much for too little. And so, as the years go by and the statutes are updated, the rights grow stronger and stronger, the private rewards become bigger and bigger, and the public relinquishes more and more control over new, innovative ideas. None of these consequences serve the public interest.

Of course, none of these consequences are intended to serve the public interest. The point of IP law is to create a deal between the public and its innovators, to convince the public to accept restrictions on ideas already in circulation and to motivate innovators to put new ideas into circulation. IP scholars who focus on the increasing restrictions argue that the price is increasing.

Vaidhyanathan’s concerns about civic culture notwithstanding, it would be hard to argue that we don’t have vibrant technology indus­tries. Software and computers have redefined the ways we work, play, and communicate. More new music is being written, performed, and cir­culated today than ever before. The same is true of film, of theater, and even of literature. Newspapers and magazines cater to every possible taste and interest. Though our cultural elite may question the quality of much of this work, it does cater to popular tastes—not at all a bad way to reward “the public” for accepting higher prices. The bottom line is, we’re paying more and getting more.

Are we getting a better deal, though? Napster, for one, pitted the rights of record companies (innovators holding copyrights poised to continue producing new music) against their artists’ fans (members of the public wishing to disseminate music that had already been recorded). We do want the record companies to continue introducing, producing, and circulating new music, but we also want to be able to share the music that we enjoy without worrying about the nuances of IP law. These two undeniable “good things” may be in conflict. How do we resolve the conflict? We ask Congress to contemplate the IP clause and to craft an appropriate tradeoff. Or at least that’s the theory.

Another example of our quandary arose from Microsoft’s triple IP pro­tection on Windows. The government went to great lengths to show how Microsoft abused that protection. Should we have never given Microsoft such strong protection? Maybe. Is the protection fine as a general matter, and the problem simply that as a monopolist Microsoft deserves height­ened scrutiny in all of its dealings? Maybe. Should we take away that triple protection now, as a punishment for its abuse? Maybe.

Representatives and Senators may regularly invoke the principle that copyright owners bear the burden of persuading Congress of the need of bring new rights within the sweep of copyright, but Congress has never once required authors or publishers to demonstrate that, in fact, they need the new right as an incentive to produce literary and artistic works.¹³

Someone, somewhere, ought to be conducting the cost/benefit analysis to see how we’re doing—and whether or not we could do better. Someone’s not doing his job.

All of IP’s critics appreciate the need for this analysis. The source of their frustration is that no one really looks at these questions. In fact, Litman contends that jockeying among special interest groups drove the entire history of copyright law. Congress hears many stories from indus­tries pushing to change the IP laws. By and large, changes happen when the loudest industries—typically pushing for changes that would move the laws in different, and sometimes opposite, directions—hammer out a compromise. Congress frequently passes laws that quiet screaming interest groups—even if their effects on quieter interest groups is less than healthy. And therein lies the true source of the quandary: Congress has been conducting the wrong analyses, with unintended consequences that haven’t served the public interest. Critics believe that Congress has abdicated its responsibility as protector of the public weal and become a shill for screaming interest groups.

That sort of lament may be fine for an IP scholar, but it can be a bit confusing in the real world. It’s easy to say that Congress should conduct a different analysis. It’s another to conclude that the world would be a better place if it reached a better balance between rights and freedom. And it’s yet another to theorize what that better world might look like. So here’s the challenge: How could we rejigger our IP rights to reduce public costs without reducing innovation? Stated another way, can we encourage all the same innovations—and maybe even more—while paying less for them?