Getting More People Aware Of The Problems Of Patents & Copyright: Reducing Social Distance

from the getting-to-know-more-people dept

Tim Lee has a great blog post over at Forbes in which he discusses the concept of "social distance" and how it relates to problems in patent and copyright law. The basic point: if you actually know people who are suffering from specific problems, you're much more willing to take those problems seriously. Lee points to two examples.

The first concerns a former chief judge at CAFC, the appeals court that handles most patent appeals, Paul Michel. Michel has been pushing a plan to increase the number of patents out there (and actually thinks the government should subsidize patents). But a few months ago, when Lee got to interview him, and asked him about all the problems developers and startups are facing because of patents, Michel dismissed them, and suggested that if they were having trouble with patents, they should just not participate (ignoring that the problem isn't the lack of participation, but those who sue these firms).

As Lee points out, it seems as though Michel has nearly no first hand knowledge of what's really happening in the field. It seems unlikely that he regularly interacts with entrepreneurs and software startup folks. But you know who he does spend plenty of time with? Patent lawyers:
One has to imagine that if people close to Michel—say, a son who was trying to start a software company—were regularly getting hit by frivolous patent lawsuits, he would suddenly take the issue more seriously. But successful software entrepreneurs are a small fraction of the population, and most likely no judges of the Federal Circuit have close relationships with one. In contrast, every judge on the Federal Circuit knows numerous patent attorneys, so they’re well-attuned to the concerns and strongly pro-patent worldview of the patent bar.
Lee's second example makes the point even more strongly. He talks about Richard Epstein, the famous libertarian law professor and writer. Despite his general views against regulation, for some reason Epstein has always had a blindspot for intellectual property law. He's been a pretty strong maximalist. But Lee notes that there's one small area where Epstein goes in the other direction -- and it's because of exactly the kind of situation he hypothesizes above: a family member struggling because of over-aggressive IP law.
While Epstein has done a lot of great scholarship, his “maximalist” approach to copyright and patent issues tends to underestimate the economic frictions introduced by these legal regimes. But there’s one exception: he has a clear understanding of the problems weakened fair use rights pose for documentary filmmakers. Why? Because his son is a documentary filmmaker who has experienced firsthand the difficulty of assembling the rights necessary to publish a documentary film.
The bigger question, of course, is how do you fix that problem? How do you "decrease" the social distance between various people and those who are regularly harmed and hindered by over-aggressive patents and copyright. As Lee notes, that's a very difficult problem to solve: "senior public officials can only have so many friends and relatives." Of course, if you can't reduce social distance, perhaps alternatively you could increase awareness of the lack of social distance. Perhaps this wouldn't work -- as people likely overestimate what they "know" of certain types of people when they really have had no serious interactions with them -- but if there could be greater self-realization then they might seek out others who do have those kinds of relationships and that kind of access.


Reader Comments (rss)

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    Hephaestus (profile), Jul 3rd, 2012 @ 8:29am

    This whole trend to push IP forward started in the mid to late 80's at Bohemian Grove when outsourcing to other nations began reducing our manufacturing base. It is all an attempt to remain relevant and profitable in the world markets.

    With how we got here partially spelled out. It is going to be very hard for people who believe IP is the future of our nation to change their ways. Like all belief systems it is immutable and unchangeable. The only thing that can happen is for the IP bubble to burst, which it is showing signs of.

    Revolt against ACTA/SOPA/PIPA/TPP, people having almost no respect for copyright, and politicians waking up to the fact that this is important to their constituents, has created fear on the political landscape. All point to the pendulum swinging the other way.

     

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    Pjerky (profile), Jul 3rd, 2012 @ 8:57am

    The glassy eyed stares...

    You have no idea how many glassy-eyed stares I have received when I have tried to discuss these issues with non-techies and even some techies.

    Most just don't see it as all that important at all. And I understand that to some extent. They have a lot going on in their lives and this just seems so insignificant in the grand scheme of things. That is until you understand how this effects your life, your future choices, and your freedoms.

    I am glad to see others are recognizing this problem too.

     

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      Chosen Reject (profile), Jul 3rd, 2012 @ 10:37am

      Re: The glassy eyed stares...

      I get the same thing. Pointing out how it affects them or those around them helps. However, I've also noticed that showing people how these laws are passed gets their attention even more. If corruption and secrecy and corporate favors are the name of the game for such an inconsequential thing as copyrights for a song, you can guarantee that it's going on even more for things that impacts them even more closely.

       

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      Anonymous Coward, Jul 3rd, 2012 @ 10:45am

      Re: The glassy eyed stares...

      Evolution doesn't happen overnight. They've made copyright and patent practices so confusing to begin with, grokking them in the "new" (to many people) digital context is a real stretch for even a fairly bright person after a day at work.

      I'm not sure people in general really even have a feel for what the Internet "is", being much more like a figurative global human mind than a book or even a library. It is a medium of expression for one, and for everyone, and a public record as well as a fabulous distribution system. We should not regulate the Internet as a whole like it a monolithic copyright industry because it is much more than that.

      In my mind we do owe it to our children to make sure freedom of speech and expression are ressurected in the digital era, and not sacrificed once again in the name of profit for the few.

       

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    Jack Furlong, Jul 3rd, 2012 @ 9:04am

    It's simple; much as we want to reduce patent problems, it's against human nature to expect someone to give up some of their income to make life easier someone they don't know.

    In this case it's judges and their friends, patent lawyers.

    The outcome sucks, but it makes perfect sense when you really think about it.

     

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    Anonymous Coward, Jul 3rd, 2012 @ 9:05am

    I suspect that another problem is that, by extending IP laws, you are not costing anyone any direct money (real or perceived). By loosening it, you are; companies have spent lots and lots of money collecting patent portfolios, for instance. If the perceived worth of those portfolios would decrease because of law reform, their owners will claim that you are directly destroying capital. But if you are making the law stronger, you are only indirectly destroying capital, because it lies in the (lack of) future innovation.

    So I'm very afraid the wheel can only turn one way, and it will not stop turning until is is so completely stuck that the entire machine breaks.

     

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      Richard (profile), Jul 3rd, 2012 @ 9:24am

      Re:

      So I'm very afraid the wheel can only turn one way, and it will not stop turning until is is so completely stuck that the entire machine breaks.

      That is why we should never have started the machine in the first place and also why only total abolition will work.

       

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    Anonymous Coward, Jul 3rd, 2012 @ 9:08am

    We don't need closeness, we need accountability

    Maybe it's just me, but I'm incredibly troubled by this article. Not because I think that it's wrong to try to decrease the "social distance", but because of what it says about our system and society.

    The way I see it, it would be really nice if legislation (or proposed legislation) was based on quantifiable, verifiable facts. It's not. Any time a major or controversial bill comes before Congress, every single relevant lobbying group or involved stakeholder shows up and starts spouting "facts" in support of their position. Any time a question of precedent or interpretation comes up before a judge, lawyers on both sides are careful to only bring up the points that support their desired outcome.

    I don't know. Maybe this is just human nature, and the way things are always going to be. If so, we're screwed; I'm pretty confident that legislators are always going to be closer to special-interest lobbyists than they are to Redditors. But personally, I'm not convinced that it has to be that way -- all we need is accountability.

    The next time that a bill like SOPA comes up in front of Congress, I guarantee you that the MPAA and the RIAA and the lobbyists are going to be there. And they're going to be shouting frantically about the number of jobs the legislation will cost/save, the amount of money the legislation will bring to and/or take from the economy, and they're going to cite the same old reports. These are the same reports that have been thoroughly debunked everywhere, by more or less anyone who understands reporting and has bothered to look. Nobody who checks actually believes the MPAA's numbers about movie piracy, for instance; but the MPAA keeps trotting out those numbers every chance they get.

    If I were to get called in front of a Congressional hearing to give testimony, and I testified with numbers and facts that I'd essentially made up, I'd be in serious trouble if I were caught. It's happened. But if a lobbyist pulls some numbers out of their own ass, and hands the numbers to a legislator or a judge, it's considered to be business as usual. I'm not convinced that legislators even consider fact-checking the numbers that they're given; all they seem to think about is whether the numbers support their position.

    It's time for a change. Before politicians start passing legislation based on false data, we need to demand that the data is actually investigated and fact checked. We need to ensure that, when data is proven to be false, it also derails the legislative process for bills based on the data. And when we can show that lobbyists are essentially lying to Congress in order to get favorable legislation, those lobbyists need to be held accountable.

     

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    6, Jul 3rd, 2012 @ 9:10am

    In this thread Mike continues his learning journey about what influence really is.

    GJ mike, you become more politically savvy every passing year.

    However, I will note that even the chief judge himself has noted this particular issue. When he spoke at the PTO he did note that the judges of the CAFC are cloistered, as are other judges and he realizes how out of touch it makes them from the consequences of their decisions.

    You guys are probably correct that if judges actually knew, and talked to on the regular, someone chaffing under the yoke of patents, or software patents in particular, then they would be more keenly aware of what's up.

    But, it isn't news save to you.

     

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    Anonymous Coward, Jul 3rd, 2012 @ 9:15am

    "senior public officials can only have so many friends and relatives."


    Yeah, and most of them are politicians.

     

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      velox (profile), Aug 6th, 2012 @ 1:16pm

      Re:

      "senior public officials can only have so many friends and relatives."
      "Yeah, and most of them are politicians."

      Yeah, and most of them are lobbyists.
      FTFY

       

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    Anonymous Coward, Jul 3rd, 2012 @ 9:25am

    two issues here.
    a) if it doesn't affect me or mine, who gives a shit? (just selfishness!)
    b)if not prepared to look at both sides of an issue, how can someone in such a position, like a judge for Christ's sake, be impartial and issue unbiased rulings?

    something that i find unnerving is that so many of those making decisions that affect almost everyone's' lives are too damn old or care even less to understand what they are making decisions over and the adverse effects those decisions have on all but a miniscule number of people.

     

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    Comboman (profile), Jul 3rd, 2012 @ 9:31am

    "Social Distance" is difficult to duplicate

    Jon Stewart had an interesting interview with Marco Rubio on the Daily Show last week. Basically Rubio has a more balanced view of immigration than most of his fellow Republicans because he is the son of immigrants, just as Dick Cheney has a more balanced view of same-sex marriage because his daughter is gay. Unfortunately, those kinds of social connections which allow people on one side of a debate to see the other side more objectively are rare and I don't see how you could create them if they don't already exist.

     

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    Richard (profile), Jul 3rd, 2012 @ 9:39am

    Imagination

    Why is is that we are fixed in the idea that only direct experience counts?

    It is that concept that causes the present impasse.

    If only the judges had some imagination they would realise the consequences of their actions without having to have it spelled out to them by an acquaintance with direct experience.

    Unfortunately modern culture devalues imagination and abstract thought in favour of personal experience. We value the opinion of a crime victim over that of an academic criminologist. We value the opinion of the patient over that of the doctor that treats them. Of course you have to be female to truly understand sexual discrimation and belong to an ethnic minority to understand racism.

    Don't get me wrong,the experiences of those who are directly involved provide valuable data for the discussion, but they are just that, data.

    So long as we treat them as something more we will continue to overvalue the data to which we happen to have direct access and the problem will persist.

     

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    Andrew F (profile), Jul 3rd, 2012 @ 10:18am

    Elect entrepreneurs to office

    Bam ... social distance of zero.

     

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    Anonymous Coward, Jul 3rd, 2012 @ 10:52am

    Why do we need a figure of speech?

    I'll just leave this here (from wikipedia):

    Cronyism is partiality to long-standing friends, especially by appointing them to positions of authority, regardless of their qualifications. Hence, cronyism is contrary in practice and principle to meritocracy.


    In my mind "making laws for..." is just as crony as "appointing them to...".

    It is what it is.

     

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    Anonymous Coward, Jul 3rd, 2012 @ 11:07am

    Heck, why limit contact to just judges sitting on the CAFC or other circuit courts? Let's get Roberts and the rest of the Supreme Court to "meet with the people" so they have more information upon which to base their legal opinions.

    You do realize, of course, this would violate the Canons of Judicial Ethics by which all judges at every level are bound in order to preserve judicial impartiality.

    In our federal system the ones who are supposed to be meeting regularly with the "common folk" are those who are members of Congres because it is Congress that enacts the laws judges may later be called upon to interpret and apply as impartially as possible. The same is true of the President and his subordinates.

    Sorry, but the role of the judiciary is fundamentally different from that of Congress and the President.

     

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    Anonymous Coward, Jul 3rd, 2012 @ 4:00pm

    Is there a simulation of markets and the impact that such decisions have on it?

    https://en.wikipedia.org/wiki/AIDA_interactive_educational_freeware_diabetes_simulator

    Wou ld we allow anybody to do surgery on somebody else without him having practiced elsewhere?

     

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    DataShade (profile), Jul 3rd, 2012 @ 10:58pm

    "Perhaps this wouldn't work -- as people likely overestimate what they "know" of certain types of people when they really have had no serious interactions with them -- but if there could be greater self-realization then they might seek out others who do have those kinds of relationships and that kind of access."

    Traditionally, things like "ivory-tower elitist," "beltway insider," "washington fat-cat" have worked very well to alter politicians' behavior. Just need something snappy....

     

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    Gene Cavanaugh (profile), Jul 4th, 2012 @ 12:32pm

    Social distance in IP law

    I am 1) an IP attorney, and 2) well aware (apparently far more aware than the people exposing problems) of the very serious problems with the IP system AND the law. I am even beginning to favor abolition of IP law until we can fix the problems.
    If anyone knows someone I should contact, I will do so, to explain how seriously IP law is harming our economy.
    Write me at genecavanaugh@gmail.com if you have constructive suggestions on how we can undertake fixing these problems.

     

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