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.

Filed Under: cafc, paul michel, richard epstein, social distance, tim lee