Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

The Innovation Act is Anti-Innovation

Google remains the third largest corporate lobbyist in the country, spending a reported $4.62 million in the second quarter in Washington, with Amazon, Facebook, and Apple spending a combined $6.07 million in the same period.  Naturally, each company has its own interests—Facebook would like more skilled immigrants in the U.S. and Amazon wants to deliver goods by drone—but all of these tech giants, according to this story in Wired, have urged lawmakers to support a patent reform bill called the Innovation Act (HR 9).  Of course, the names of bills can be terribly misleading sometimes. Because, as far as I can tell, the Innovation Act is fundamentally anti-innovation.

At its core, HR 9 is meant to rid the patent system of the dreaded Patent Troll, who—like its cousin the Copyright Troll—will enforce a somewhat flimsy claim in some constituent patent it has no interest in developing, but pursues the case solely for the purpose of extracting money from an entity that is developing something new.  Even strong patent proponents will admit that bad actors exist—bad actors exist in every system—but that trolls are the exception not the rule, and more importantly, that the Innovation Act is based on a definition of “troll” so broad as to potentially disenfranchise many legitimate inventors.  In essence, the passage of HR 9 would be a rather sad comment on the fundamentally American rationale that established the intellectual property clause in the first place — the assumption that a great idea might come from anywhere.

The central problem with the way Silicon Valley interests are portraying the need for reform, according to Professor Adam Mossoff at the Center for the Protection of Intellectual Property at George Mason University School of Law, is that so many of the arguments are predicated on what he calls “junk science.”  Mossoff criticizes inaccurate studies of patent litigation, which have led to defining the term “patent troll” so broadly as to threaten a hugely inventive sector of the American market.  In legal lingo, the colloquial troll is generally referred to as a Non-Practicing Entity (NPE), but much of the data used to support reform proposals will define NPEs as “any entity that derives the majority of its revenue from patent licensing activities.”  As Mossoff—and former patent judge Paul Michel—will point out, this would include universities, start-ups, biotech firms—literally any entity that has the capacity and resources to invent but not the resources, structure, or expertise to develop, manufacture, distribute, and market. To quote Mossoff, “…the definition [of the NPE being applied] is so broad that it renders the results of its study completely uninteresting, unremarkable, and predictable – it’s like saying that 90% of people who sue over an auto accident own cars.”

If a doctor has a concept for a new medical device, both she and the public are going to benefit faster in most cases if the device is sold or licensed to a company that already has the resources to bring the instrument to the market.  Perhaps this same doctor will create a business entity that goes on to invent or improve several other medical devices, but which only ever sells the licenses for those products because it doesn’t make sense to become manufacturers.  Why should this innovative company’s patent interests be weakened by the fact that it would be defined as a Non-Practicing Entity?

In fact, where proposals like HR9 appear to lead is to further exacerbate the central hazard in the U.S. market, which continues to favor the massive corporation over the entrepreneurial endeavors.  It puts giant corporations at an unfair advantage—as if they didn’t already have an advantage—when it comes to licensing or exploiting the intellectual property created by individuals, start-up entities, or R&D-based institutions like universities.  Not only does this seem as though it would accelerate the disastrous trend of wealth consolidation, but it also appears to undermine the central, democratic principle that genius may come from the humblest corners of society and should be rewarded when it does.

On this note, I also have to point out that the arguments for this proposed reform to patent law sound a little too app-centric for our own good.  In large part, the aims of the “reformers” appear to be predicated on software and other innovations that tend to have short lifespans in the market–transformations measured in months in contrast to patents that last years.  And while I understand how distracted we can be with all the shiny objects that dance around on our little screens—giving us new ways to spy on ourselves for data mining companies; to hook up for casual encounters; to order a car service; or to play games on the crosstown bus—we should remember that there’s a lot of lower-tech invention and development that needs doing around here, even in the computing world.  We still need a greener energy paradigm, still have aging infrastructure, healthcare needs, security issues, outdated transportation systems, and growing concerns over resource management.  The inventions inherent in addressing any of these and other long-term challenges may well be in the minds of people whom HR 9 would define as future “patent trolls.”  That doesn’t sound like progress to me.

Orphan Works Rumor Not Helpful

Okay.  A bunch of my artists rights friends and colleagues need to take a breath, because some of you are doing exactly the kind of stuff we hate when the tech industry exaggerates or fabricates negative aspects of copyright.  In the last 24 hours, I’ve encountered a handful of artists rights proponents sharing links and comments proclaiming that the Copyright Act is about to be overhauled, that there is an Orphan Works proposal before Congress, and that visual artists in particular must immediately write to the Copyright Office by July 23rd to make their voices heard on these matters.

Stop.  Breathe.  None of this is true.

First of all, the Copyright Office is seeking input from photographers and other visual artists in order to gain insight as to how this class of creators might better monetize their works, enforce their rights, and more easily register works in the digital age.  The office is soliciting comments in the interest of better protecting creators’ interests, and this July 23rd request has nothing to do with Orphan Works, even if there were such a proposal on the Hill—which there is not.

As for Congress, the Judiciary Committee began holding hearings in April of 2013 as the first step in a comprehensive review of the Copyright Act, and the last of those hearings was held in April of this year.  Congress has thus far listened to 100 witnesses and, as stated by Chairman Goodlatte, “Over the next several months, the Committee will be reaching out to all stakeholders to invite them to share their views on the copyright issues we have examined over the course of our review so far, as well as any others.”  In case you’re unfamiliar with the sound, that’s the proverbial wheels of justice grinding slowly, which is what they’re supposed to do. (Okay, it’s a bit of a mixed metaphor for the legislature, but you get the idea.) It’s also worth noting that the last revision of the Copyright Act took several decades, and the outcome of this review process may not be a rewrite of the law. Hence, nothing is moving as rapidly as your Twitter and Facebook feeds.

The purpose of this review—hence the word review—is not to debate any specific changes to the law, but to assess the Copyright Act in a contemporary light and to hear testimony from experts and stakeholders with differing views as to the strengths and weaknesses of the law in our new technological times.  As such, there is neither an Orphan Works bill nor any other proposal before Congress to amend the Copyright Act. Not yet. Those days may come, and artists and creators should certainly remain involved when they do.

Artists and creators have typically been shouted down or bamboozled by heavily-funded corporate shills and the nouveau-savant within academia, who for various reasons have jumped on a bandwagon of hostility toward intellectual property.  They are the hysterics. They are the ones who cry SOPA every time anyone thinks to protect IP in the digital age. They are the ones who deflect any attempt to impose civil law upon Internet companies by manufacturing a backdoor conspiracy involving a pair of congressmen and a bag man from the MPAA.  Creators cannot afford to to play those games, not least because the antagonists to the interests of creators are masters at exploiting the hypocrisy of others while admitting no such errors in themselves.

Stay involved. Stay the course.  But stay informed.

The Anti-Vaxxer: A Cautionary Tale for the Digital Age

About two weeks ago, movie star Jim Carrey was in a libertarian lather over California Governor Brown’s signing the new state law mandating vaccinations for nearly all children. Carrey posted an indignant tweet accompanied by a photograph of a young boy with autism — a photo he used without permission. Carrey later apologized for his misappropriation of the child’s picture, but not for his irresponsible declaration about vaccines.  And this particular example, at least to this curmudgeon, is the folly of digital age in neon lights. I don’t mind that celebrities like Carrey have more Twitter followers than celebrity scientists like Neil deGrasse Tyson; I mind that people can’t tell the difference.

The first measles vaccinations were made available in the U.S. in 1963, which means that my generation was the first to be nearly 100% immunized against the disease. As such, it is startling to realize that people from this same vanguard generation grew up to reject vaccinations for their own children in numbers sufficient enough to incubate a new outbreak of a once-dead disease. Based on my own observations, this particular brand of wrongheadedness began with social attitudes and economic forces that influenced us Gen-Xers as young adults, which then collided with the Internet to turn a minority attitude into a legitimate health hazard.

This blog is largely predicated on the thesis that information isn’t always information, that by expanding the populist idea that “everyone gets a voice” through technology, we have to accept the unfortunate side-effect that we cannot help but legitimize, brand, consolidate, and even monetize proposals so flawed that they can actually reintroduce a plague to the modern world. But as I say, I think the seeds that grew into the fully-formed anti-vaxxer were planted before we all got online. I also believe this is a middle-class or privileged-class phenomenon, so generalizations that follow apply accordingly.

GenX: The Helicopter Parents

For starters, we GenXers generally grew up to believe that our parents didn’t really know what they were doing. The Boomers were the first generation to divorce and remarry in large numbers, so straight away, their wisdom on relationships was questionable. But more than that, it seemed that we Xers approached parenthood distrustful of conventional wisdom, determined to lavish extraordinary attention on our children in ways that our parents had not. (Thus was born the phenomenon of the “helicopter parent,” who would raise the “snowflake” millennials.)

The market was there to meet us in our ambition to be different with a frenzy of new theories, new knowledge, new products, and new services, the volume of which validated our underlying assumption that we were right about what previous generations did not know. There were some well-founded innovations, like the proper way to lay an infant down in order to mitigate crib death or the need to use bike helmets and car seats. But there were also plenty of unproven ideas, like training a fetus in-utero how to one day master calculus by playing just the right amount of Bach in the general direction of the mother’s pregnant tummy.  Either way, there was a lot of “new” information out there, and a lot of it contradicted the body of knowledge previously referred to as common sense.

Unfortunately, information overload creates an anxiety that one might miss the opportunity to make a wiser choice about any matter. And although being a new parent is a special kind of madness under any circumstances, our particular anxiety about making “wise” choices for our kids was, I believe, symptomatic of a larger, economic apprehension. Whether we articulated it just this way or not, I think we instinctively wanted to make our kids competitive in the market, meaning intellectually competitive, but in an atmosphere in which we trusted very few of the foundations upon which we ourselves had been raised. As such, I have to say something truly unkind now about many Gen-X parents I have known—that one aspect of the narcissism within the privileged classes that produced anti-vaxxers is a sensibility that imagines the “perfect” child, most especially a child who does not have any kind of learning difficulties.

Thus, certain parents who had the financial freedom to indulge in the aforementioned bounty of contemporary wisdom on childcare were uniquely susceptible to the rumors that began to percolate in the early 1990s associating vaccines with autism.  Of course, the anti-vaxxer fallacy is a classic case of post hoc ergo propter hoc—confusing coincidence with causality—namely that symptoms of autism tend to present at the same time children are given certain inoculations.  Add to this the fact that autism spectrum disorders in general had only begun to be more acutely recognized and studied among the Millennial generation of children, and the number of cases can only have gone up in contrast to previous generations for whom no such studies existed.

Still, my wife and I certainly did ask our pediatrician in those days about the dangers of vaccines, to which he responded by emphatically describing the symptoms of mumps, pertussis, measles, etc. that often precede an early and entirely preventable death. We never openly doubted the decision again, but I won’t lie:  being a first-time parent is plain terrifying. My first kid was a preemie and small and used to spike terrible fevers with some of his vaccinations, and it was all scary.

But I began to realize that whatever paranoia I might subject myself to regarding these shots was nothing compared to the incalculable dangers the world had in store for him as he became increasingly independent –that of all the leaps of faith I would eventually take as a father, trusting this doctor’s 30+ years of experience was hardly a real test. We vaccinated, as did most other families, and we rarely gave much thought to the few holdouts whose paranoia, religion, or neo-hippie ideology firmly rejected inoculation.  You’d encounter one from time to time, either doe-eyed and daft or militant and rude, insisting that vaccines were a grand conspiracy; but these individuals seemed scattered and isolated, more likely to cause localized harm than to incubate a widespread crisis. Then, we got on the internet …

The Internet Multiplies Ignorance

Do a Google search with the term “Should I vaccinate?,” and the results are mixed. Do the same search using Bing, and the top results are a little more skewed toward advocating vaccination, but still mixed. When I did this search during the measles outbreak earlier this year, the top six articles were all suggesting or insisting that vaccinations are to be avoided. It stands to reason that when stories are “trending,” there will be more searches on related subjects; but because the search algorithms usually favor popularity with regard to prioritizing results, the apparent consensus on a given issue can have a profound effect on the individual doing the searching.  And because the default is pro-vaccination, it makes sense that more people —even those who will ultimately vaccinate—are going to review articles and sites providing them with rationales against vaccination. As a result, we see a situation in which people are doing exactly what they should do—use the Internet to educate themselves—but are inadvertently legitimizing a flawed proposal that, although it is a minority view, is still popular enough to foster a huge problem.

Education is no antidote. To the contrary, healthy skepticism is a cornerstone of education; it is right to seek information that may not jibe with prevailing wisdom. This blog critiques the prevailing wisdom that Web 2.0 is exclusively a boon to democracy and economic prosperity. We all have our biases and we look for information to support those biases. And having read some anti-vaxxer positions on the Internet, they are generally not hysterical and screaming like Jim Carrey’s dumb tweet. They are often thoughtful, well-argued, and frequently cite studies and research to support their positions. If I were a new father today reading all that, I would have doubts. As I say, I’ve been there.

But there is still the problem that the principles of immunization are proven science despite the fact that the “democratization of information” has, at times, moved the subject to the realm of “debate.”  And because the architecture of the Web tends to reward quantity (i.e. traffic) regardless of quality, this can entrench even the most disastrous beliefs to the extent that the very concept of expertise itself is frequently attacked as “mainstream” or “elitist” or the exclusive purview of “gatekeepers.”

The very real measles outbreak we witnessed in California in the winter of this year is a pretty good example as to how a false idea gains momentum, takes on the veneer of credibility when amplified through mass media, and then manifests in unintended consequences that ought to give rational people pause to consider a flaw in their hypothesis. Instead, the evidence of sick children only seemed to entrench the anti-vaxxer view, not unlike the way we saw the murders at Sandy Hook galvanize gun rights activists to shore up ideological defenses rather than participate in a conversation about gun violence in this country. As a result, for instance, democratic lawmakers in my state passed a reactionary and useless gun-control law that only serves to fuel the militancy of the opposing crowd. And we see this with issue after issue in what appears to be our increasingly hostile and self-righteous politics across the ideological and economic spectrum.

The word community is thematic among the inventors and promoters of social media, but there is no question that the purpose of community is often subverted by the democratization of information through these platforms.  The “everyone gets a voice” ethos nurtures the individual’s sense of civil liberty (i.e. narcissism) until it becomes entirely blind to any notion of community. The anti-vaxxer will assert his individual right to make the vaccine choice for his child while ignoring the communal responsibility implicit in the science of immunization. At the same time, the internet provides this narcissist with a new community–one that is naturally composed of fellow anti-vaxxers; and this same phenomenon will apply to any conspiracy theory.

In this context, I think about the men who first wrote our civil liberties into law and remember that every one of them witnessed firsthand the ravages and untimely deaths caused by small pox, measles, mumps, rubella, and a host of other maladies. So, I wonder if the Founding Fathers could visit us today, learn that our scientists had eradicated these terrible diseases, but that certain citizens viewed their participation in this immunology as an infringement on liberty, they might not request a copy of the Constitution and a red pen.

NOTE: Original post edited on 2/6/2021.

Photo by: Rabbits