James Boyle has just delivered the pièce de résistance in his three-part series on copyright for the Financial Times: Deconstructing Stupidity. The stupidity in question is the way that governments typically make intellectual property law and policy -- that is, without evidence that it will produce the desired social or economic benefit.
"If the stakes were trivial, no one would care," observes Boyle. "But intellectual property (IP) is important. These are the ground rules of the information society. Mistakes hurt us. They have costs to free speech, competition, innovation, and science."
Why, then, do we make these mistakes? According to Boyle, it's not only "corporate capture" that makes governments stupid about copyright. They also suffer from any number of delusions, making them susceptible to "anecdote and scaremongering."
The film and music industries are tiny compared the consumer electronics industry. Yet copyright law dances to the tune played by the former, not the latter. Open source software is big business. But the international IP bureaucracies seem to view it as godless communism.
If money talks, why can decision-makers only hear one side of the conversation? Corporate capture can only be part of the explanation. Something more is needed. We need to deconstruct the culture of IP stupidity, to understand it so we can change it. But this is a rich and complex stupidity, like a fine Margaux. I can only review a few flavours.
The three flavors in this particular tasting: "maximalism," "authorial romance," and the legacy effects of "industry contract."
As Boyle writes, IP delusions are not merely stupidity. They constitute "an ideology, a worldview, like flat earth-ism. But the world is not flat and the stupidity pact is not what we want to sign."
Absolutely not. But delusions are by their nature difficult to shake.
In part two of the series, Boyle pointed out that in the US, we make weather data available at cost -- yet we have a thriving private weather industry. Now, Siva Vaidhyanathan brings news that Senator Rick Santorum (R-PA) wants to prevent the National Weather Service from giving away weather information because it competes with the Weather Channel.
"It is not an easy prospect for a business to attract advertisers, subscribers or investors when the government is providing similar products and services for free," says Santorum in a Palm Beach Post article. How many people will challenge the Senator on his assumption that the weather industry can't compete with free? I'll wager not many -- despite the fact that it already is.