By James Boyle
For those stalwarts who lived through the Bush years in a thrall of horror and disbelief, broken only by Jon Stewart monologues, Barack Obama's arrival has been cathartic. True, the sight of your retirement account statement may bring on nausea, chills and palpitations. (Is it really unrealistic to think of working until you are 70? As a bicycle messenger?) But there is always the soothing relief of hearing the announcement that yet another Bush policy has been overturned, even if the announcement generally comes with a pragmatic footnote. America is now against torture again. (But also against prosecuting those who tortured and against declassifying photos of abuse.) Guant�namo will be closed down. (Though we don't know quite where the inhabitants will go.) The United States will do something about climate change. (Even though the actual plan is full of corporate giveaways.) The phrase "Justice Department" no longer sounds like an oxymoron. And so on.
Sometimes the "pragmatism" looks a little like "not trying" � as when Obama scurried quickly into retreat on immunity for the telephone companies who participated, probably illegally, in spying on US citizens. But those who understand politics better than I give him fairly high marks on his combination of principle and pragmatism. And since I couldn't craft a legislative majority at a dinner table over what Chinese food to order, I am reluctant to throw stones at those who have to deal with considerably more unwieldy coalitions.
So what does Obama's mixture of principle and pragmatism look like in the world of the new economy, and more specifically, the world of intellectual property policy? The picture is definitely mixed. On the one hand, he has brought brilliant people to important positions. It is nice to have a Nobel prize-winner (Steven Chu) as Secretary of Energy, and another (Harold Varmus) as the Co-chair of the President's Council of Advisors on Science and Technology. It is hard to imagine the Obama team talking about science as if it were simply one inconvenient partisan position or ridiculing the "evidence based mindset" or, for that matter, evolution itself. The administration has good ideas about what to do with the slow motion train-wreck that is the US Patent and Trademark Office. It is not clear if those good ideas will be implemented, but one can hope. In the area of copyright law . . . well, the signs are mixed.
Traditionally, Democratic administrations take their copyright policy direct from Hollywood and the recording industry. Unfortunately, so do Republican administrations. The capture of regulators by the industry they regulate is nothing new, of course, but in intellectual property there is the added benefit that incumbents can frequently squelch competing technologies and business methods before they ever come into existence. Years of making policy this way have given us retrospectively extended copyright terms that are in excess of 100 years. (Perpetual copyright "on the instalment plan" in Peter Jaszi's words.) It has given us a one-sided and unbalanced view of the world, which registers with complete accuracy the real dangers that the content industry faces from any new technology, while ignoring the benefits those same technologies can provide � including to the content industry. The Obama administration's warm embrace of Silicon Valley, and Silicon Valley's chequebook, had given some hope that this pattern would change � and I think it will. Now, instead of taking copyright policy direct from the media conglomerates (who, after all, have a very legitimate point of view � even if not the only point of view) it is quite likely that the administration will construct it as a contract between content companies and high-technology companies such as Google. In some places, citizens and consumers will probably benefit, simply because optimising for the interests of two economic blocs rather than one is likely to give us a slightly more balanced, and less technology-phobic, set of rules. And perhaps the administration will go further. But recent actions make me doubt that this is the case.
http://www.thepublicdomain.org/2009/06/18/obama-in-cyberspace/
