faith based – Techdirt (original) (raw)

from the faith-based-policy dept

For many years, we’ve pointed out that so much policymaking around copyright law is what we’d argue to be purely “faith-based.” The fact that there is little to no actual evidence that stronger copyright protections lead to better outcomes for the public, the economy or for society is ignored by people who just know it must be true. And the constant assertions about extending and expanding copyright always seem to come from this same faith-based positioning. An exploration into the empirical basis for copyright law finds that there basically is none and the reason we have copyright is because a couple of centuries ago some people thought it was a good idea, and no one’s really bothered to check since then.

One of the most ridiculous examples of this “faith-based” reasoning is the belief, among many, that the way to stop widespread copyright infringement is just to increase the punishment for those who are caught. Sure, you can understand the armchair economists’ reasoning here: if you increase the punishment, you’re increasing the “cost,” which should decrease the activity. But, that’s just wrong on many, many levels. First, let’s take a step out of the copyright realm and into the criminal justice realm. After vastly expanding punishment (via things like “three strikes” laws), many, many people (even those who supported such programs) are now admitting that long sentences don’t actually do much to deter crime. While there were some studies in the 80s and 90s suggesting long sentences reduce crime, more recent (and much more thorough) studies have basically rejected that view. A recent survey of many studies in the area found little support for the idea that longer sentences deter criminal activity.

A bunch of other, even more recent, studies agree. A massive report from the University of Toronto goes through the history of the support for harsher sentencing, and a ton of historical and modern research, and concludes:

At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on ?deterrence through sentencing? who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts.

The evidence supporting this conclusion has been accumulating for decades. In the 1970s, thoughtful reviewers were cautious in their conclusions, suggesting only that the deterrent impact of harsh sentences had not been adequately demonstrated. More recently, we, and others, have been more definitive in our conclusions: crime is not deterred, generally, by harsher sentences.

Another major study, from two years ago, by the National Research Council more or less says the same thing: “the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure.” Another recent research report, which also delves deeply into the arguments from the 70s and 80s now concludes: “The empirical work of the past thirty-five years has presented evidence that some of the deterrence we thought that we were likely to get was not, in fact, forthcoming…. ” Hell, even the National Institute of Justice, the “evaluation” agency that’s a part of the US Justice Department (which regularly pushes for harsher punishment) says directly on its website:

Increasing the severity of punishment does little to deter crime.

Laws and policies designed to deter crime are ineffective partly because criminals know little about the sanctions for specific crimes. Seeing a police officer with handcuffs and a radio is more likely to influence a criminal?s behavior than passing a new law increasing penalties.

That same page further notes that “sending an offender to prison isn’t a very effective way to deter crime.”

At this point, you have to be willfully ignoring the evidence to argue that throwing people in jail for a long time is a way to deter crime. The reasons why the simple theory at the top of this post is wrong are that (1) most people committing crimes don’t expect to get caught and (2) many people who are committing crimes don’t even know what punishment might be, or vastly misunderstand the likely punishment.

Okay, so let’s jump back into the copyright world. For reasons that are beyond comprehension, the UK government has announced plans to try to put copyright infringers in jail for 10 years. The UK’s Intellectual Property Office recently released a report, following a consultation on this issue, in which it clearly supports a 10-year sentence for infringement, arguing:

The UK is frequently cited as the world leader in IP enforcement, and as Minister for IP I want to do everything I can to preserve this standing. The provision of a maximum ten year sentence is designed to send a clear message to criminals that exploiting the intellectual property of others online without their permission not acceptable.

The report also states, unequivocally:

The Government believes that online offences should be treated no less seriously than their physical counterparts. Harmonising these will provide a deterrent effect to criminals and, where criminality continues, provide for tangible punitive action.

Notice, of course, that there is no citation for this view. And, also, the fact that it clearly contradicts a ton of empirical research, as discussed above. Perhaps noticing the same thing, Kieren McCarthy at the Register sent a FOIA request to the Intellectual Property Office asking them where the 10 year maximum sentence idea came from. The answer? The IPO just made it up based on… nothing.

Such information was derived from our analysis of the evidence and opinion provided to us by a wide spectrum of interested parties, over the consultation period.

No empirical understanding of the issues of punishment and deterrence. No actual understanding of the issues. Just a bunch of people gave us their opinions, and we just plucked 10 years out of thin air. And, of course, as McCarthy notes, even that line above is clearly untruthful, since the vast, vast majority of the submissions provided to the IPO opposed the 10-year sentence proposal, which the IPO then stuck with anyway. In the IPO’s response to McCarthy, it also cited a couple of studies concerning copyright, but both of those studies advise against such an increase in sentencing.

So it appears that the Intellectual Property Office is focused on increasing criminal penalties for copyright infringement to 10 years in jail based on proactively and willfully ignoring the empirical evidence both in the criminal justice world and in the copyright world.

And then they wonder why the public doesn’t respect copyright law?

Filed Under: copyright, deterrence, evidence-based, facts, faith based, ipo, jail terms, punishment, sentencing, uk

Copyrights & Patents Have Become A Religion; All Data Will Be Ignored

from the I-WANT-TO-BELIEVE dept

If you’ve read Techdirt for any length of time, you’ll have noticed that intellectual property laws have been decoupled from logic for several years now. Because the entities heavily-reliant on IP protections (and who mostly serve as gatekeepers and middlemen, rather than perform any creative work of their own) have trouble producing evidence that extended copyright terms or increased enforcement efforts are actually instrumental to the creation of future artistic works, they have tended to fall back on assertions that various governments have a “duty” to protect their interests.

It’s not an assertion borne of data or extensive research. It’s a statement of faith. Record labels and movie studios spend millions every year issuing takedowns and lobbying for favorable laws. And every year, they fail to point out where these efforts have added to the bottom line. When confronted with this lack of evidence, they’ll often declare this is only because we’re not doing the things that aren’t working hard enough or often enough or with enough severity.

Mark Lemley, whose work — especially that focused on the broken patent system — has been featured here before, has just published a paper examining this thought process: Faith-based Intellectual Property.

Lemley opens by noting that we supposedly live in an “age of reason,” with a wealth of information and powerful data tools at our fingertips. But when the data fails to produce the desired evidence for increased IP protections, reason is swiftly abandoned and replaced with nothing more than unfounded beliefs.

This isn’t just a post-file sharing phenomenon. This dates back more than a half-century.

Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we had one the evidence didn’t justify abolishing it.

There’s more evidence available now than there was 60 years ago, but nothing’s improved.

The upshot of all this evidence is something rather less than a complete vindication of the theory of IP regulation… This doesn’t mean that we are no better off than we were in Fritz Machlup’s day. The problem isn’t that we don’t have enough evidence, or the right kind of evidence. The problem is that the picture the evidence paints is a complicated one. The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy… Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so.

Despite the lack of clear indicators that strengthened IP laws result in more creativity, or at least, more profitability for industries which rely heavily on IP protections, the push for expanded terms and more draconian IP-enforcement penalties hasn’t let up. When the available data doesn’t support held beliefs, there are options.

Shoot the messenger:

A lesson I learned early in my academic career is that while people will dispute, ignore, or shrug off policy arguments they disagree with, they get really incensed when the data disagrees with them. And one way they can justify ignoring that data is to persuade themselves that the source of that data must be biased in some way and so their numbers cannot be trusted. The most vitriolic attacks I have experienced in more than twenty years as a law professor were directed at the most innocuous-seeming papers—papers that presented data that revealed some uncomfortable facts about the status quo.

Someone can be paid to produce data that agrees with held views.

A second reaction to data you don’t like is to try to go out and buy some of your own. Companies with a vested interest in a system that empirical evidence calls into question have been spending a great deal of money to fund studies written (sometimes preposterously) to lead to the conclusion they support.

Or, you know, ‘find God,” as it were…

Participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all. That is, their response to evidence that doesn’t accord with their beliefs is not to question their beliefs, or even to question the evidence, but to retreat to a belief system that doesn’t require evidence at all.

Lemley quotes Berkely’s Rob Merges, a leading patent scholar — one who turned to faith when the data didn’t support his predispositions.

After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.”

With adherents like these, who needs evidence? What were once a limited rights, granted for the betterment of all, are now an expansive rights, benefitting only a select few. Any lack of supporting evidence is no longer germane to the argument. IP rights are now being controlled by those who “feel” or “believe” in the fundamental “rightness” of their arguments. Data need not apply.

The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself—that IP is some kind of prepolitical right to which inventors and creators are entitled.

There’s a reason why religions and governments shouldn’t be allowed to intermingle. This adherence to the “moral” rights of creators plays hell with the system.

It intervenes in the market to interfere with the freedom of others to do what they want in hopes of achieving the end of encouraging creativity. If we take that purpose out of the equation, we are left with a belief system that says the government should restrict your speech and freedom of action in favor of mine, not because doing so will improve the world, but simply because I spoke first.

When the faithful guide the creation of legislation, bad things happen — things that undermine the societal benefits of limited rights for a limited amount of time. Those limits are no longer in place, and supposed protections like “fair use” give more value to intellectual property than freedom of expression. The system is broken and those exploiting it the most don’t want it fixed.

Trademark rights extend to prevent uses that would happily have coexisted fifty years ago. We have added a slew of new copyright statutes, expanding the term as well as the scope of protection, increasing penalties, and reaching conduct further and further removed from actual infringers. We issued six times as many patents in 2014 as we did three decades before, and most of the patent suits filed are brought by patent trolls, a category of plaintiffs that didn’t even exist forty years ago and that one might think has a weaker moral claim on IP than people who actually make products.

Unfortunately, Lemley realizes the ultimate futility of his research. While small factual misconceptions can often be corrected, adherents to any form of faith-based system (whether they be pro- or anti-IP) are almost impervious to arguments that run contrary to their beliefs — no matter how much data is provided.

If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.

This where we are today: subject to laws written to accommodate true believers. The faithful that have been indulged in their expansion efforts even while a whole host of supposed “industry killers” have risen and fallen with little to no discernible damage done to entrenched IP-reliant industries.

Filed Under: belief, copyrights, evidence, faith based, mark lemley, patents, religion, research, trademark

from the would-be-nice-to-have-some-fact-based-policy dept

If you’re a regular visitor to this website, you’re likely used to the never–ending parade of horribles detailing how copyright has been used to censor documents, stifle innovation and generally wreak all kinds of unintended havoc.

Even with this constant attention, it’s sometimes easy to lose sight of exactly how world-champion strange copyright policy is. Only when it’s placed alongside other government policies does it become clear exactly how it has evolved into a bizarro-world version of rational policymaking.

That something does what it’s supposed to is usually the baseline for evaluating public policy. It’s certainly what I expected to find as I researched my (shameless self-promotion alert) just-published book, Copyfight: The global politics of digital copyright reform. I’m an economist and political scientist by training, and also spent six years as an economist with the Parliamentary Information and Research Service, the Canadian equivalent of the Congressional Research Service. Coming cold to the wonderful, wooly world of copyright, I expected that such a long-lived institution would be grounded at least partly in empirical evidence that it, you know, actually promotes the creation and dissemination of music, books and so on.

Silly me. Here’s how Ruth Towse and Rudi Holzhauer conclude their introduction to their 2002 edited volume, The Economics of Intellectual Property:

“For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers.”

That’s not exactly a ringing endorsement. (Towse and two co-authors reach a similar conclusion in a 2008 article reviewing the economics literature on copyright.)

In a 2009 study, “Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty,” Raymond Shih Ray Ku, Jiayang Sun and Yiyang Fan remark that “even though copyright has existed and continuously expanded for hundreds of years, there has been little research done to test the theoretical basis for copyright’s expansion. In fact, so little has been done that one author [in 2006] specifically pled for more empirical research.”

Being good researchers, they did just that, looking at whether the number of works created in the United States from 1870 to 2006 increased as the government strengthened copyright law. They found that stronger copyright indeed led to more works being created.

Kidding! They actually found “that when lawmakers consider whether to expand copyright law, there is little empirical or theoretical support for the position that increasing copyright protection will increase the number of new works created.”

Despite a lack of evidence that would spur calls for a fundamental rethink in almost any other area of public policy, copyright continues to spread and strengthen, from books to computer programs to online works, from a renewable 14 year term to life of the author plus 100 years in Mexico.

And of course there’s Ian Hargreaves’ 2011 report, which called for UK copyright policy to be “evidence based.” Imagine that.

While none of this will surprise readers of this website, to any non-copyright policy wonk this state of affairs is insane.

It’s not that all (or even most) public policy is purely evidence based (see: Drugs, War on). Power, self-interest and morality shape all policy debates. But copyright is unique in that it is driven almost purely by these factors. Even morality-based arguments for the War on Drugs have to contend with the actual, measurable effects of government anti-drug policy.

Copyright reforms should be evaluated based on how they would affect the production and dissemination of creative works. How much is being produced? How many people are able to access these works?

That doesn’t happen. Instead, policy is driven by morality-based arguments about how copying is theft, and by its effects on specific industries and business models (often citing industry-supplied data). Not good.

We’ll never eliminate power and self-interest from copyright politics. However, it could be made a bit more sane by adopting an evidence-based focus on how well it fulfills its dual objectives in the interests of society as a whole. In doing so, analysts could help ground a debate that, in the absence of evidence, is polarized by self-interested arguments and irreconcilable questions of morality and “rights.” This should’ve happened 300 years ago, but better late than never.

Blayne Haggart (@bhaggart) is an assistant professor of political science at Brock University in St. Catharines, Ontario. His first book, Copyfight: The global politics of digital copyright reform was just published by University of Toronto Press.

Filed Under: copyright, facts, faith based, policy making

from the faith-based-policy-making dept

One of our biggest issues with the constant beating of the drum to extend and expand copyright law, is how much of the policy making is totally faith-based. We always go back to the famous speech by Thomas Macaulay in 1841, in which he declared (among other things):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.

There is, these days, in the minds of certain policy makers that copyright must be good and more copyright must be better. That the actual evidence suggests otherwise is ignored. Evidence is not even sought. Instead, they take on faith the claims of the legacy entertainment gatekeepers that they need such extensions and expansions. This is why we were so happy to see the Hargreaves report in the UK repeatedly bang home the idea that copyright policy must be evidence based. And while the government claimed that it was effectively supporting the recommendations of the Hargreaves report, it appears that they still have a bit of a blindspot for needing evidence.

The folks at the Open Rights Group filed a Freedom of Information Act request for what evidence the government was using concerning the “scale and nature of infringement of copyright by websites and on the efficacy of different strategies for dealing with it.” The response? They had no evidence:

I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the Department?s records, I can confirm that we do not hold the information you are requesting.

Instead, the government just repeated the same faith-based talking points:

The creative industries are an important part of the UK?s economy, and they regularly report copyright infringement as a serious problem.

Is it really so difficult for the government to provide any evidence other than “these few companies claim it’s a problem”?

Filed Under: copyright, digital economy act, evidence, faith based, uk