[Ecommerce] (J.Boyle in FT) New Economy: Year in Review

[Manon Ress]

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[ Picked text/plain from multipart/alternative ]
New Economy: Year in Review

http://www.ft.com/cms/s/0/fdae0ad4-b8a6-11dc-893b-0000779fd2ac.html

By James Boyle

Published: January 1 2008

This year did not offer anything as fabulous as Senator Ted Stevens=92
explanation of the internet as =93not a big truck=94 but =93a series of
tubes=94 =96 a gaffe that ended up generating both its own music video and
its own wikipedia entry.  In fact, 2007 provided several arguable
violations of the Stevens Principle =96 namely that =93understanding a
technology disqualifies one from regulating it.=94  Only time will tell
whether these constitute a trend. It is not a =93best of=94, but here were
three moments of happy surprise in what was otherwise a fairly grim
year.  In reverse order...

3. US presidential hopefuls discover technology: One would not think
this would be a great year for science and technology. The Republican
candidates are under pressure from their base to claim that they
believe in neither evolution nor human-caused climate change. (Perhaps
burning copies of The Origin of the Species will provide the
alternative energy source we need?) Where is the advantage for the
Democratic contenders in having a science and technology policy more
extensive than =93we believe in it=94? Yet many candidates from both
parties actually have positions on complex issues such as =93net
neutrality=94. One might expect that the Democrats would be in favor of
net neutrality. Who wants the phone company to be able to delay your
connection to a business if they are not getting kickbacks from that
business? They are =96 particularly Barack Obama =96 but it is a shock to
find Republican Mike Huckabee explaining succinctly: "The internet is
a highway and we don't restrict highways to 18-wheelers...if it's a
car, an SUV, or a truck, you use the same highway." John McCain, who
is against net neutrality, stuck with Senator Stevens=92 metaphor.
=93When you control the pipe you should be able to get profit from your
investment." (If the highway ran through a tunnel, could it be both a
road and a tube...?) As always, the best comments come from candidates
no one has heard of.  Mike Gravel =96 a Democrat =96 wins the honesty
award for his policy on intellectual property.  "I don't know enough
about the whole copyright issue, I truly don't."  Someone tell him
about the Stevens Principle.  A summary of the candidates=92 positions
can be found here. [http://www.techcrunch.com/presidential/issues.php]

2. Surprising flashes of evidence-based policymaking continue The last
few years have had several remarkable and unusual examples of
intellectual property policy being made based on... gulp... empirical
evidence about likely effects. Normally the purest example of faith-
based policy, intellectual property, has been remarkably resistant to
what the Bush administration derisively calls =93reality-based=94 world
views.  Yet in 2005 and 2006, the remarkable Gowers Review in the UK
and the European Union=92s review  of the database directive both
actually attempted to model rigorously the effects of the various
policies that were proposed and to test anecdototal claims against
actual data. True, those efforts were not always successful. Despite a
review that clearly showed that the database directive was not
working, the Commission succumbed to tide of political pressure and
kept it in place. But in 2007 the Gowers Review proposals on music
copyright extension and personal copying were both kept alive, despite
considerable opposition. The UK government, to its great credit,
seemed to think that a study of actual effects was an important part
of the policy process. True, looking at the facts does not guarantee
good policy. But it is a promising beginning.  Now if only the
government would implement some of the recommendations on limitations
and exceptions to copyright...

1.  Maybe we need to fix patent law....?  For the last 20 years patent
law in the US has gone from bad to worse.  Moderate economists publish
books with titles such as Innovation and Its Discontents describing
the patent system as =93broken=94 while the Patent Office and the top
patent court continue blithely to allow the patenting of business
methods, algorithms, one-click shopping, auctions and pretty much
anything stunningly obvious under the sun. There are signs that this
is changing, however. Over recent years, the US Supreme Court has been
issuing increasingly pointed rebukes to the main patent appeals court,
the Court of Appeals for the Federal Circuit (CAFC).  This tendency
continued in 2007 with an important ruling that should make it easier
to claim that an invention is =93obvious=94 and thus not patentable. Given
the patents that the USPTO routinely grants =96 methods of swinging on a
swing, reverse auctions online, crimped peanut butter sandwiches =96
this is cause for moderate rejoicing. Only moderate. So far the CAFC=92s
response to the chorus of admonitions from on high has been to put
fingers in both ears and chant =93I can=92t hear you!=94 very loudly. (To
give the CAFC credit, one must note that while they were willing to
allow the patenting of almost everything else, they did draw the line
at peanut butter sandwiches. Some things are sacred.)  Meanwhile in
Congress some serious =96 if partially flawed =96 attempts to reform
patent law have actually made headway, though nothing has yet been
passed.  Perhaps one day patent law could return to its vital but
limited role and companies could spend less money on patent lawyers
and more on engineers. Not that I should complain. I train the lawyers
so, in theory, a complex, vague and standardless system is in my
professional interest. I still cannot work out what is in it for the
rest of you though.  Happy 2008.

James Boyle is William Neal Reynolds Professor of Law at Duke Law
School, author of The Shakespeare Chronicles, Bound By Law  and
Shamans, Software and Spleens















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Il vaut mieux remuer une question, sans la d=E9cider, que la d=E9cider,
sans la remuer.
Pens=E9es, essais, maximes et correspondance de J. Joubert  p.249
http://visualiseur.bnf.fr/Visualiseur?Destination=3DGallica&O=3DNUMM-88671
Translation: It is better to debate a question without settling it
than to settle a question without debating it