23 February 2006


Mark Kleiman at UCLA notes that:

Max is right that "everyone has an ideology." But not everyone gives preference to ideology over analysis when the two clash. No one succeeds in being perfectly objective. But there's a difference between trying and not trying.

There's nothing wrong with having advocacy organizations, and if some of them decide to sponsor real research, so much the better. I merely want newspapers to distinguish between groups that start with questions and groups that start with answers.

So, does this have any impact on intellectual property deliberations? Are you kidding?

One obvious source of, umm, predestined conclusions is the RIAA. The RIAA apparently can't even be consistent; it accepted that ripping CDs onto one's own machine (whether computer or portable player) was consistent with fair use in Grokster, but now wants to argue otherwise in a rulemaking proceeding. Admittedly, views can change over time; this is a major flip-flop being submarined through in less than a year, though. The IWTBF1 folks, particularly the EFF, are no better, either in terms of consistency or in terms of predestined conclusions (whatever the evidence looks like).

Too, the kind of legal regime to be applied is also predestined. When we get together to talk about broad policy, we tend to look only at the core statutes in front of us. Within IP, this leads to the blindness of almost everyone at the frontier between trademark and copyright.2 Very, very rarely, one will see acknowledgement that there is at least some overlap, such as Chorion plc's description of itself:

Its principal properties and brands are the literary works and character brands of Agatha Christie (Hercule Poirot, Miss Marple), Enid Blyton (Noddy, Famous Five) and Georges Simenon (Inspector Maigret).

That's not the only problem, though. Very few IP scholars, and even fewer IP commentators, acknowledge the implications of (and for) IP doctrine concerning antitrust, choice of law, dispute resolution, and bankruptcy.3

And this gets us back to the problem pointed out by Professor Kleiman. It's not just ideology that's the problem; it's reference frame, especially when the reference frame and ideology become intertwined (as in the overwhelmingly pro-market-forces, substantially pro-conservative field of "law and economics").

  1. Information Wants to Be Free. Whether "information" wants anything is beside the point; entertainers and artists want to eat, and in Western society (with the possible, but only possible, exception of Sweden) that means getting paid for their works. Find me a workable alternative that doesn't lead to even worse censorship than the "censorship of the market" and I'll certainly listen.
  2. Admittedly, this is at least as much a matter of civil procedure, evidentiary burdens, and remedies as it is of substantive law—at least in practice. What concerns me is the dearth of even theoretical work.
  3. See, e.g., In re iBooks, Inc., No. 06-10300 (Bankr. S.D.N.Y.) (filed Feb. 21, 2006).