[Ip-health] Slate on prizes and CLs

[Aaron Shaw]

--
[ Picked text/plain from multipart/alternative ]
It would be nice if the Obama campaign would take a similar stance on IP an=
d
global governance issues.

Below is a blog post I wrote a couple of days ago in response to the Tim Wu
piece that addresses Obama's technology and innovation policy:

(if the links don't work for you, you can also point your browser
here<http://fringethoughts.wordpress.com/2008/04/02/tim-wus-technology-poli=
cy-wish-list-how-does-obama-measure-up/>
)

-Aaron

Tim Wu's technology policy wish-list: how does Obama measure
up?<http://fringethoughts.wordpress.com/2008/04/02/tim-wus-technology-polic=
y-wish-list-how-does-obama-measure-up/>
April
2, 2008

It always hurts a little when an idea for a blog post or an article gets
scooped. But at least it hurts a little less when someone as insightful and
engaging as Tim Wu does it=85

Wu's latest piece
<http://www.slate.com/id/2187740/pagenum/all/#page_start>at Slate
draws up a short list of priorities that an American
president-elect ought to think about. They are:


   1. appoint a broadband czar
   2. create an FCC dream team
   3. fix international tech policy
   4. implement the technology of transparent government
   5. find long term solutions for (a) immigration and (b) the patent
   system

 He goes on to provide detail in each of these areas, mixing his analysis
with an assortment of humorous analogies linking George W. Bush and Nero,
Dracula and Brezhnev, respectively.

While I enjoyed the article, it left me thinking about where Barack Obama
falls on these issues. It's worth noting that Wu has a horse in this race
(as he discloses clearly in this related
interview<http://www.openleft.com/showDiary.do?diaryId=3D3636>with Open
Left's Matt Stoller from about two months ago) and that his wish
list reads like a reiteration of his rationale for supporting for Obama
(like I said, read the
interview<http://www.openleft.com/showDiary.do?diaryId=3D3636>
).

An old blog post by Larry
Lessig<http://www.lessig.org/blog/2007/11/4barack.html>(in fact, the
post from November, 2007 in which Lessig announced his support
for Obama) has a pretty detailed discussion of the candidate's tech policie=
s
at the time as well as a link to a useful policy statement of Obama's
Innovation and Technology
Plan<http://fringethoughts.files.wordpress.com/2008/04/obama-fact-sheet-inn=
ovation-and-technology-plan-final.pdf>(PDF).

Lessig heralds Obama's commitment "to important and importantly balanced
positions" demonstrated by the plan. For the most part, I agree with this
assessment, but I think it's worth pointing out some of the places where
Obama's plan might not quite live up to the Tim Wu gold-standard. The key
lies in the plan's ambiguity in certain areas.

The plan states that Obama will support key reforms in the areas of
standards, net neutrality, transparency, broadband provision, and privacy.
It also states that "Obama will appoint the nation's first Chief Technology
Officer" (5), a position that would likely hold even greater power than Wu
arrogates for his "broadband czar." Obama also promises to deploy technolog=
y
to facilitate universal health care, job creation, climate-friendly
development. He even has a section devoted exclusively to immigration (8).
Last, but not least, Obama comes out with a strikingly similar statement in
favor of patent reform (9).

Taken together, these ideas pretty much cover items 1 (broadband), 4
(transparency), 5a (immigration) and 5b (patents) on Wu's list. They also
suggest that Obama won't be shy about dealing with item 2 (the FCC) even if
he doesn't say so explicitly.

And yet, things get kind of murky on the international governance front. Fo=
r
example, the following paragraph on page 9 could have come straight from th=
e
mouth of Jack Valenti <http://en.wikipedia.org/wiki/Jack_Valenti>:

*Protect American Intellectual Property Abroad:*  The Motion Picture
Association of America estimates that in 2005, more than nine of every 10
DVDs sold in China were illegal copies. The U.S. Trade Representative said
80 percent of all counterfeit products seized at U.S. borders still come
from China.  Barack Obama will work to ensure intellectual property is
protected in foreign markets, and promote greater cooperation on
international standards that allow our technologies to compete everywhere.

Not to rain on Larry and Tim's parade, but given the current climate of
strict enforcement against whatever the MPAA decides is piracy, this is not
a balanced statement. Obviously, it's not useful to act as though Obama wil=
l
hold these positions consistently if he wins office, but the language here
sounds an awful lot like the current USTR's industry-sponsored spiel on
counterfeiting and
piracy<http://www.ustr.gov/Document_Library/Press_Releases/2007/October/Amb=
assador_Schwab_Announces_US_Will_Seek_New_Trade_Agreement_to_Fight_Fakes.ht=
ml>.
Is this merely pre-election grandstanding? Lip service to the special
interests of patent and trademark owner? Or a sign that we need to think
harder about the rest of Obama's positions? There's that ambiguity.

A little earlier on the same page, the following paragraph appears:

*Promote American Businesses Abroad:* Trade can create wealth and drive
innovation through competition. Barack Obama supports a trade policy that
ensures our goods and services are treated fairly in foreign markets. At th=
e
same time, trade policy must stay consistent with our commitment to demand
improved labor and environmental practices worldwide.  In its first six
years, the Bush Administration has filed only 16 cases to enforce its right=
s
under WTO agreements. This compares to 68 cases filed during the first six
years of the Clinton Administration. President Bush has failed to address
the fact that China has engaged in ongoing currency manipulation that
undercuts US exports; that China fails to enforce U.S. copyrights and
trademarks and that some of our competitors create regulatory and tax
barriers to the delivery and sale of technology goods and services abroad.
Barack Obama will fight for fair treatment of our companies abroad.

I'm especially excited by this one because it suggests that Obama intends t=
o
return global trade poliy to multilateral governance forums. This would
represent a momentous and crucial shift away from the current
administration's practice of using bi-lateral and "plurilateral" pressure t=
o
silence critical trading partners. At the same time, I need to take my
Bush-goggles off: there's nothing benign about returning to the Clintonite
days of using the WTO tribunal and the rhetoric of free trade as a cudgel t=
o
enforce American advantage abroad. Once again, ambiguity.

The bottom line from both of these cherry-picked excepts is easy to see. I
have a hard time figuring out if Obama's policy advisors (and Larry Lessig
may well be one of them) are merely hedging in order to comfort anxious
industry lobbyists or quietly signaling that they will only go so far in
pushing the tech policy agenda in a progressive direction. In this regard,
the campaign may merely be responding to the subtle effects of pressure and
influence wielded by stakeholders such as the pharmaceutical
industry<http://www.pharmalot.com/2008/02/drug-money-pharma-bets-on-obama/>
.

To be fair, four out of the five items on Tim Wu's list ain't bad - indeed,
it's a far cry from Hillary's
proposals<http://www.openleft.com/showDiary.do?diaryId=3D3182>(link is
to an old diary of Matt Stoller's at Open Left) - but I can't help
wondering how these conversations will sound a few years hence.








On Sat, Apr 5, 2008 at 1:12 AM, Amy Kapczynski <akapczynski@law.berkeley.ed=
u>
wrote:

> --
> [ Picked text/plain from multipart/alternative ]
>
> Slate commissioned a series of articles on how a new administration
> could fix the Bush administration's worst mistakes.  Tim Wu did the
> piece on technology, which has lots of interesting bits -- but two
> parts of particular interest, on CLs and prizes.
>
> <snip>
> =95 Fix international tech policy. The president has broad powers to
> set U.S. international tech policy, and the next president can act to
> do so quickly. As with the FCC, the president has the chance to staff
> the Office of the U.S. Trade Representative with some of the best and
> brightest; he or she should also appoint a worthy successor to
> "Internet ambassador" David Gross in the State Department. The
> president can also act to reverse a few of the uglier policy
> practices that have crept in.
>
> Here's a leading example: Today, the United States=97at the request of
> the domestic drug industry=97continues to sanction poorer nations for
> trying to make available low-cost medicines for their citizens. For
> much of the 1990s, the drug industry and the U.S. government insisted
> that the sale of affordable generic AIDS drugs in African nations
> would be bad for innovation and global health. Under heavy pressure,
> the Clinton administration in 1999 swore it wouldn't punish poorer
> nations that break patents to sell cheap AIDS drugs, and Bush pledged
> to respect that policy. But as recently as last year, the United
> States was pressuring Thailand to abandon its efforts to provide
> cheaper AIDS drugs to its citizens=97even though Thailand had followed
> WTO rules in doing so.
>
> U.S. backsliding in this area is indefensible and creates plenty of
> bad international karma. The next president should declare early on
> that the United States will no longer put trade pressure on
> developing countries using WTO-compliant means to make medicine more
> affordable.
>
> ...
>
>
> In addition to patent reform, over the last decade economists have
> urged limits to the patent as a tool of encouraging invention. More
> economists think there needs be a greater role for "innovation
> prizes"=97prizes for beneficial inventions that, for one reason or
> another, the commercial patent system doesn't seem to do a good job
> of encouraging. Examples are renewable-energy technologies or
> treatments for diseases in developing countries. If we can afford to
> put a price on the head of Osama Bin Laden, why not one for inventing
> a malaria vaccine?
>
>
> <snip>
> ----------
>
> http://www.slate.com/id/2187740/
>
> Slate Magazine
> fixing it
> Tech Policy
> Jump-starting our tech policy.
> By Tim Wu
> Posted Tuesday, April 1, 2008, at 8:09 AM ET
>
> Perhaps the only thing that's actually improved over the last eight
> years under President Bush is technology (if not tech policy). In the
> sense that Nixon presided over an age of great films like The
> Godfather, the Bush era was also the age of Wikipedia, search
> engines, YouTube, and Facebook. But the Bush system of benign neglect
> can only go so far, leaving plenty to fix as soon as the next
> president takes office.
>
> Here are a few suggestions for things we can fix right away:
>
> =95 Appoint a broadband czar. Most people in technology will tell you
> that the leading problem today=97the one thing sinking all boats, so to
> speak=97is the broadband last mile, the final connection between people
> and the Internet. Since 2000, computers have become faster, hard
> drives cheaper, and free e-mail better, but for the vast majority of
> Americans, Internet access remains clunky. Same goes for wireless
> broadband (cell phones with good Internet access), which is arriving,
> but slowly and expensively. These facts limit what everyone in the
> tech and media industries can imagine as effective new products. They
> are also beginning to put the United States at a disadvantage as
> compared with nations in Asia and Europe that have invested more.
>
> It's a daunting problem with a long history of both public and
> private failure. Unlike, say, building a better dating service,
> broadband is an infrastructure problem that requires solutions akin
> to improving roads or plumbing. National infrastructure policy is
> tough, and, at its worst, Bush's approach has borrowed largely from
> Emperor Nero.
>
> To start fixing things, the next president should immediately
> announce a national broadband policy with this simple goal: to put
> the United States back into undisputed leadership in wireless and
> wire-line broadband. But the question is how, and that's where things
> get complicated. Proposed fixes abound: pay Verizon, AT&T, or Comcast
> to build it? Treat the Internet's pipes like the interstate highways,
> and have the government build them? Use tax credits to encourage
> consumers to buy their own fiber connections? Sell property rights in
> spectrum or create a "mesh" wireless commons?
>
> No one really knows what the best answer is. That's why the next
> president should appoint a specialized broadband czar to get after
> the problem. Right now, broadband is no one's responsibility, and the
> buck keeps getting passed between industry, Congress, the White
> House, and the FCC. The point of a czar would be to make it someone's
> job to figure out what it will take to fix broadband.
>
> =95 Create the FCC dream team. The next president will have the
> opportunity to appoint an entirely new Federal Communications
> Commission. The FCC is the principal American regulator of
> communications, setting many of the most important rules for
> information economy. The appointment opportunity shouldn't be wasted=97
> the next president could and should dramatically transform what the
> FCC can be.
>
> Once upon a time, actual experts were appointed to the commission.
> The first commission, in 1927, was, as historian Philip Rosen writes,
> "a remarkable group." It included a former admiral who was a naval
> radio expert, an inspector from the Commerce Department, an engineer
> and editor from McGraw-Hill, a practicing broadcaster with a Ph.D. in
> English, and a state Supreme Court judge. Today, none of these people
> would be considered for the job.
>
> Instead of communications expertise, the leading qualifications are
> now mostly political. Preferred experience includes time logged as a
> Capitol Hill staffer or in state government; work as a Washington,
> D.C., telecom attorney and/or lobbyist; some campaign experience; and
> buy-in from a major industry. Yes, many talented people possess these
> qualifications, and the FCC has, and continues to have, great
> leaders. But at some level the approach is like choosing from among
> Nike's lawyers to find coaches for the U.S. Olympic team. At its
> worst, it means commissioners show up with "team loyalty"=97a duty to
> serve the interests of one of the major industries. And lax
> restraints on lobbying post-FCC service exacerbates the problem=97why
> make your future boss angry?
>
> The next president needs to break this tradition. She or he should
> search far and wide (yes, even outside of Washington, D.C.) for the
> wisest tech experts and visionaries to try to create an FCC dream
> team. The yardstick is the 1927 commission. By 2010, we should ask
> whether the next administration has managed to at least equal
> President Coolidge in the quality of its appointments.
>
> =95 Fix international tech policy. The president has broad powers to
> set U.S. international tech policy, and the next president can act to
> do so quickly. As with the FCC, the president has the chance to staff
> the Office of the U.S. Trade Representative with some of the best and
> brightest; he or she should also appoint a worthy successor to
> "Internet ambassador" David Gross in the State Department. The
> president can also act to reverse a few of the uglier policy
> practices that have crept in.
>
> Here's a leading example: Today, the United States=97at the request of
> the domestic drug industry=97continues to sanction poorer nations for
> trying to make available low-cost medicines for their citizens. For
> much of the 1990s, the drug industry and the U.S. government insisted
> that the sale of affordable generic AIDS drugs in African nations
> would be bad for innovation and global health. Under heavy pressure,
> the Clinton administration in 1999 swore it wouldn't punish poorer
> nations that break patents to sell cheap AIDS drugs, and Bush pledged
> to respect that policy. But as recently as last year, the United
> States was pressuring Thailand to abandon its efforts to provide
> cheaper AIDS drugs to its citizens=97even though Thailand had followed
> WTO rules in doing so.
>
> U.S. backsliding in this area is indefensible and creates plenty of
> bad international karma. The next president should declare early on
> that the United States will no longer put trade pressure on
> developing countries using WTO-compliant means to make medicine more
> affordable.
>
> =95 The technology of transparent government. One of the great and
> enduring accomplishments of the Bush administration was that it
> undermined once and for all the argument that the best decisions are
> made in secret. Some of Bush's more grotesque mistakes=97like the
> decision to spy on American citizens without warrants=97might have been
> averted by even a tiny amount of transparency.
>
> Bush leaves behind a transparency tradition somewhere between
> Brezhnev and Dracula. A new administration can and should change that=97
> but giving people information about what the government is doing is
> actually an information-technology problem. To an Internet user, what
> the government really lacks today is a good search engine or wiki to
> find out what's going on. The White House, perhaps through a CTO- or
> CIO-like figure, can find out what the barriers to transparency are,
> how many are unnecessary, and what can make it easier for citizens to
> follow their government. Whether that means turning the next White
> House into a four-year episode of Real World, I leave to the next
> administration to decide.
>
> Long-term solutions
>
> =95 Immigration. The insanity of the current U.S. immigration policy
> hurts not just the conscience but the tech industries as well. Yes,
> Congress controls immigration levels, but the new president can
> certainly push for more visas for highly skilled foreign workers.
> Otherwise, innovation will follow the talent, whether it's in India,
> Ireland, or Palau.
>
> =95 Patents and prizes. The United States patent system drifted into a
> state of generally recognized insanity in the late 1990s, turning the
> supposed friend of innovation into a menace. In its darkest days, the
> U.S. Patent Office and the Federal Circuit Court essentially threw
> open the patent store and let anyone take what they wanted. Hence the
> years of ridiculous patents on sandwiches and anti-gravity space
> vehicles, along with industry-endangering patents used to force
> settlements out of innovators like RIM and Microsoft.
>
> To their credit, the Supreme Court and the Patent Office have in
> recent years fixed a few of the worst problems, but issues remain.
> The next president or his surrogate must lean heavily on the Patent
> Office to take seriously its responsibility as an effective
> gatekeeper of patent quality. The deeper cure has two parts: The
> first is pushing for a system that allows opposition to patent
> applications and other reforms, like the famous "gold-plated patent"
> proposal championed by Mark Lemley, Douglas Lichtman, and Bhaven
> Sampat. The second is starting to rebalance the pro-patent Federal
> Circuit, arguably among the more activist courts in the nation and
> the recent target of a Supreme Court crackdown. The president can
> appoint judges to the Federal Circuit Court of Appeals (the patent
> court) who are both respected experts yet also believe that more
> patent isn't always better.
>
> In addition to patent reform, over the last decade economists have
> urged limits to the patent as a tool of encouraging invention. More
> economists think there needs be a greater role for "innovation
> prizes"=97prizes for beneficial inventions that, for one reason or
> another, the commercial patent system doesn't seem to do a good job
> of encouraging. Examples are renewable-energy technologies or
> treatments for diseases in developing countries. If we can afford to
> put a price on the head of Osama Bin Laden, why not one for inventing
> a malaria vaccine?
> Tim Wu is a professor at Columbia Law School and co-author of Who
> Controls the Internet? He has advised the Obama campaign on certain
> aspects of its technology policies. His views do not necessary
> represent those of the Obama campaign.
>
> Article URL: http://www.slate.com/id/2187740/
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