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| Sterling Memorial, Yale |
Intellectual property is one area of expertise for Posner and Landes. Their further expertise is to place intellectual property in a general economic analysis of that area of the law and of judicial activity and of legislative activity. Their arguments have become so widely accepted that they are used as were they established fact, without attribution. They have become commonplaces in legal arguments in the field. At my entry level below dilettante, I have only a vague inkling on the actual reception of their ideas. There are echoes as well as actual citations in the work of Grimmelmann and Sprigman.
To start the discussion: Of initial interest here is the candid Posner. In his talk at the AEI November 2002, transcribed from tape, Posner measures the growth of intellectual property: 1. patents doubled 1985-2001 from 111,000 to 269,000; 2. federal cases in the area doubled, same period; 3. Journals in the area increased 13 fold, same period; 4. Membership in the intellectual property section of the ABA grew from 5,500 to 22,000, same period. I guess the last numbers are the scariest. And that was nine years ago.
In his oral presentation, immediately after citing the growth numbers (above) he gives a brief legislative history of copyright from '29 [He says 28 years and a 47 year renewal, which may refer to the 20 year extension that had been added in the '76 law, but then who am I to contradict here?] to '76 "life pus 50" to 2000, "life plus 70." The implication is that here is another expansion of his field to be celebrated, extending copyright beyond the boundaries of the universe.
This is enough to bring tears to the librarian-researcher. The proud judge glories in the growth of his field - more than a thousand lawyers added per year - and he glories in the triumph of his "Beanie Baby" insights - and he marks this as his area of most expertise - and then proposes to talk about copyright and books in the same breath. Active judges are listening.
Curiously, in an expanded version of the talk which has become chapter a of the book (op. cit.) the growth rate in this area of the law is measured in terms of the number of words of the copyright statutes, not in the number of lawyers at the ready. The numbers of lawyers has been moved to the introduction. There are 11,550 words in 1946 statutes and 124,320 in 2000. Similar figures are given for the trademark and patent statutes. I plan to draw some conclusions from this switch in examples.
The fact is - upon closer examination - that Judge Posner's economic analysis does not really draw lines between copyright, patent and trademark as separate, distinct areas with completely different underpinnings. He and Landes switch routinely between the three areas of law with examples in quick succession. Of course it is understandable when judges and law professors associate pointedly (not randomly) in all areas of the law.
In the expanded version, the candor is gone, one can suspect the influence of an editor at Harvard UP. Two graphs and a table have been added to gloss over the muddling of the differences of the three areas in the oral presentation. Yet no amount of editorial smoothing can blot out the impressions given by the candid oral presentation.
In fact, I propose to apply the skepticism gathered from the oral presentation to the cleaned up version.
The Expansion of Protection of Intellectual Property
The first graphic, Figure 1. of the cleaned up version, (a graph), shows the growth in "number of words" of statutes on copyright, patent and trademark compared to a general increase in words in the US Code.
The figures show that the Federal Code grew modestly but regularly, doubling from 1947 to 1970 and doubling again by 1985 and adding another 50% of the words extant in '85 by 2000 [a rough summary].
Patent statues also doubled by 1970 and doubled again by 2000. Trademark statutes remained steady from 1947 on and had barely doubled by year 2000.
In contrast, the copyright statutes doubled and redoubled from the 100 point baseline in 1947, to 1200 points by year 2000.
Although there is an attempt to drop the names of statistical procedures, it is hard for the normal reader to gain additional insight from all this razzle dazzle. Only one thing is clear, Judge Posner (Prof. Landes) is on record on the difference between the three kinds of statutes - with emphasis - a table and a couple of graphs to prove it. Someone at Harvard UP has left a finger in the dike.
The following graphic, Table 1. shows the different costs to the government of registration in copyright, patent and trademark for the years 2000, 2001 and 2002.
Per registration: copyright $70, patent $2,500, trademark $438. Total costs: copyright 40 million, patent a billion, trademark 138 million give or take a million.
Application fees: Copyright $30, patent $600, trademark $400. Here we have good numbers.
This has the feel of economic analysis, the question is: "What do these numbers tell us about copyright?"
The chief insight from this table is that we have apples, automobile tires and paper-clips together. Apples and oranges would not render the situations since they are both round and edible and thus have something in common, neither would oranges and potatoes and radishes, all edible plants.
Posner explains the differences, but does not really clear up why the three things are in one table. Copyright is asserted which means there is no application process hence one wonders what the federal government is doing with its 70 bucks per registration. Chances are it costs that much to catalog a deposited book in the LOC, find a place for deposited materials or to make an entry in a database.
With patents the application fee is 600 followed by a fee of 1,300 per granted patent and a maintenance fees every couple of years scaling up to 3,150 at 11.5 years. Opponents to the patent may rise and contend the grant of a patent thus requiring counsel. For families of patents in the hundreds with active opposition, one can imagine that attaining and maintaining a series of patents is a major investment not to be compared to copyright. True, both copyright and patent have "creation" time but clearly, those who seek patents are willing to invest big bucks in protection. Clearly the intent of patent legislation is that patents that do not produce are dropped. Recent trends in copyright have moved toward the perpetual for all, whether they produce or not. Trademark terms seems to approximate a term of economic viability with some safeguard that something is actually being traded.
The first table is designed to differentiate clearly between copyright, patent and trademark. Point taken, intellectual property is a loose term with little actual meaning.
The last graphic, Figure 2. of the cleaned up version present a grandiose bit of statistical nonsense, it is just the kind of statistical text analysis that gives statistical text analysis a bad name. There is, however, the good chance that I simply lack familiarity with the issues. P&L correlate the number of word in the statutes with the number of registrations in each of the three fields. Nothing surprises, nothing meaningful unearthed.
Obviously in 1947, the number of words in the copyright statutes was small compared to the repeated linguistic splits (doubling) by year 2000. The tripling of the statutes in the 1950's followed by a flat word expansion curve for the next 20 years explain the first dip in the graph. The gradual rise of the ratio to 1976 despite the flat word expansion means that registrations doubled. The generous verbiage from Congress in the 1976 Copyright Act explains the second dip. The consolidation of state copyright under federal copyright does not register in the dip, it may be a non-issue. The subsequent meandering of the correlation to 2000 can no doubt be explained by new technology in the Government Printing Office which made adding a few more appendices at 10,000 words per, to legislation easy to do. The fact that renewals were counted as registrations could explain a bump after '92 when renewals were discontinued.
I find it shocking, that such figures should be given significance by the experts in the field. I hope it was merely a bad idea by an editor trying to shore up the original talk. The two graphs could also be a meeting of economist speak and lawyer speak. Hail fellows, well met.
Judge Posner plays at being puzzled by the numbers. He is puzzled that the number of words in patent statues did not increase at the same level as the number of words in copyright statues. In his world there is a correlation between the "rents" potentially to be gotten from a body of law and the number of words in the statutes promising the "rents." A Posnerian idea is that legislative activity is stimulated by lobbying for the promise of "rents." It is a investment to coax smiles from the cartel builders. I don't think I am exaggerating when I read Posner to suggest that people go to Congress to have cartels fashioned for them.
The puzzling over the statistics also allows Judge Posner to do unintended judicial comedy routines. He imagines what it would be like to have the copyright office operate like the patent office. Let us suppose that there were readers at the copyright office that could spend a billion dollars a year deciding if a submitted text were actually original enough to warrant a copyright - roughly half a million registrations of which 10% may be books in some form. The idea of training such a cadre is fascinatingly comical - it would require the concentrated around the clock effort over decades of every humanities department of all our universities if existing copyrights were included and originality vis a vis the public domain were checked. I would love to design such a system or at least to speculate what such a system would look like. I find this a hoot, but am concerned that this train of thought comes from leaders in the field - with no hint of irony.
The hypothesis is that "statutory activity" [the growth in the number of words in the statutes] is positively correlated to the "activity regulated by the statute" [the number of patent applications or the number of copyright applications]. I find such a hypothesis shocking. The implication is that Congress fills the trough with words, and the petitioners line up in great numbers to benefit from the words while they are still fresh.
In Judge Posner's world interest groups curry favor with Congress; when the interest groups get whatever benefits Congress grants, that can be measured in the number of words and taken to the bank. Then it is then up to the judges to make sure that these benefits are delivered to the right interest group as a reward for its lobbying, e.g. that cartels are enforced. Free riders, those in the field that benefit without having paid a congressperson are perceived as a problem. The law, after all, is the law; one should only get what one has paid for.
Judge Posner solves the puzzle for himself. Despite the low numbers of copyright applications, despite the high rents from patents, "patentees have less need for legislative favor" than copyrightees since patentees have their own court "hospitable to patents." Clearly, the copyrightees have received their legislative favors; would they had received a court.
This searching for meaning in the two figures and the table is a rhetorical device which has several functions. First it increases the importance of the potential correlation. Secondly, it reinforces the idea that something like "market forces of the public will" are at work here. This may also be called "political economy."
