Politicians will be politicians: Obama’s technology policy not as good as advertised?

I wasn’t watching the US presidential primaries because I saw it asa race between Tweedle Dee and Tweedle Dumb. I have some politicalideas that might otherwise slide me to supporting the Democrats, butthen I look at the damage done during the Clinton/Gore years to the USdomestic and foreign economic policy through the DMCA, Sonny BonoCopyright Term Extension Act, and the two controversial 1996 WIPOtreaties (largely US efforts). This isn’t all that different thanCanada where I have some political ideas that might otherwise convinceme to vote Liberal, but then notice that some of the worst ideas ontechnology law have been promoted by Liberal MPs such as Sheila Copps, Sam Bulte (Lost her seat in the 2006 election), and now Dan McTeague and Hedy Fry.

I then watched a slideshow from Lawrence Lessig titled 20 minutes or so on why I am 4Barack. Lessig said that Obama’s technology policies were strong, and that he was going to work to change congress to reduce the influence of special interest group money on the US congress. I quickly blogged about this myself back in February.

I was pointed to many other indications of differences in policiesbetween presidential candidates. I was told (but can’t find referencenow — please add to comments) that when Obama was trying to designtechnology policy that he included people like Lessig, but when Clintonwas doing the same she brought in people like Steve Balmer and otherlobbiests for old-economy ways of looking at knowledge. This suggestedto me that Ms. Clinton would be following the same type of dangeroustechnology law policy as her husband did.

Given my interest in Obama I started to pay attention to the primaries more closely, and even subscribed to the BarakcObamadotcom channel on YouTube — watching it on my Neuros OSD.

I heard Mr. Obama make many references to global economic policythat seemed to confirm what I had thought, and heard many references toNetwork Neutrality which I consider to be quite linked to other issuesaround technology law.

I then heard part a speech that made me second guess whether Obamawould be any different. This was in the context of a town hall meetingwhere someone asked about trade agreements that were seen as exportingUS jobs overseas.

The Video is: Barack Obama: Town Hall Meeting in Bend, OR, and if you move to 03:24 in the video you will hear Obama say the following with regards to foreign nations such as Korea.

    “They have got to protect our Intellectual Property. Our biggest advantage is going to be our technology and our science. But if other countries are going ahead and just grabbing that technology and replicating it without providing any kind of fair licensing agreement and reimbursement, then that’s theft. But it’s the kind of theft that hurts our long term competitiveness. So we’ve got to have a President that is serious about enforcing these laws, and it is not what we have had over the last 7 and a half years.”

While I realize that it is good politics to talk protectionism and trash-talk other countries to what seemed like strong Industrial-era Labour crowd, what Obama said was simply bad public policy on a number of fronts.

First, for someone well known for referencing the founding fathers in many very articulate speeches, it is embarassing that he fell into the Jefferson Debate trap.

On August 13, 1813, Thomas Jefferson wrote a letter to Isaac McPherson which included the following:

    “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

Mr Jefferson wrote in his very eloquent way why these intangible rights cannot be legitimately compared to tangible property, and why saying “then that’s theft” is just embarrassing.

Of a more substantive nature is the foreign policy suggestion being promoted in this speech, which is that every other country should be expected to have the same patent, copyright, trademark and other intellectual exclusive rights laws as the United States.

Historically intellectual exclusive rights regimes have been used by countries to further what they perceive as their own economic interests. It is common for countries to have different regimes at different stages of economic development. When the United States was a developing country, as a net importer of technology (for instance from 1790 and 1836), the US restricted the issue of patents to its own citizens and residents. For patent law it wasn’t until 1861 that foreigners were treated on a nearly non-discriminatory basis.

Until 1891, US copyright protection was restricted to US citizens, meaning that it was perfectly legal for US citizens to import European books and mass-produce and distribute them commercially within the United States. Various restrictions on foreign copyrights remained in force (for example, printing had to be on US typesets) which delayed US entry to the Berne Copyright Convention until as late as 1989, over 100 years after the UK (and Canada which was under UK law).

Some might consider it simply hypocritical of the US government and presidential candidates to demand of other countries something very different than what it did itself. I believe it is important to realize that what the United States did as an emerging economy was the right thing to have done, and the right thing for other countries to continue to do.

Having weak regimes, or regimes that differentiate foreign and domestic innovators and creators, is an appropriate way to build domestic capacity. Only when the country can be a net exporter of knowledge “goods” and services should it (if it ever does) adopt a more restrictive regime. It makes sense for countries to have reciprocal “national treatment” regimes which say that we will treat the exclusive rights of your citizens the same as our own, as long as you do the same for our citizens.

One problem is that the United States has decided to give up much of its manufacturing economy in exchange for some sort of “Intellectual Property economy” that may never emerge (See: “How Hollywood, Congress, And DRM Are Beating Up The American Economy“, and “Key question about the shape of the knowledge economy.“). In the short term, if you look at the balance of trade of royalties you will find that over half (53%) of the value of all royalty and license fees paid in 2002 were received in the United States. This suggests that the only country where the type of intellectual exclusive rights regime that the United States has is the United States.

It then becomes odd that the United States doesn’t have the most overall restrictive exclusive rights regime at the moment.

A good report to read to understand these issues is the 2002 report of the Commission on Intellectual Property Rights, a commission set up by the British government to look at how intellectual property rights might work better for poor people and developing countries. This is also part of the discussion within the Development Agenda at the World Intellectual Property Organization, which is a fundamental shift at that organization to recognize that having the same rules within every country does not make sense.

So I’m curious to any Obama supporters that may read this: Is this a momentary lapse on his part, or are his ideas about the new economy and technology law as out-of-touch as most other politicians? Was he simply trying to say to one group of people a “special message” that would be entirely different than he would try to express to a different group? Is Obama really that different of a politician, or is this simply more of the same dishonesty we have come to expect in Washington and Ottawa?

Update: Looking at the Technology section of Obama’s website you will find that his policies on copyright and patent law is based on a fundamental misunderstanding of the roll of knowledge in the knowledge economy. He clarifies his position with the statement, “Intellectual property is to the digital age what physical goods were to the industrial age. “. This is a belief that I not only disagree with but believe is dangerous to the US economy and its allies.

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Jim Love, Chief Content Officer, IT World Canada

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