There’s no sense in beating around the bush: Robert Reich’s NYT editorial on Friday, “Big Tech Has Become Way Too Powerful” indicates that when it comes to intellectual property (IP) and antitrust law, he doesn’t know what he’s talking about. This isn’t a normative critique of Reich’s antitrust views, but rather an objective assessment of Reich’s limited grasp of the basic facts and law here.
The thrust of Reich’s argument is that large Internet platforms are misusing intellectual property rights to maintain unfair advantages in the marketplace, and this needs to be reined in. He begins with the premise that the “most contested policy issue” in regulating Internet platforms is intellectual property, and that “information and ideas are the most valuable forms of property.”
Quite simply, Reich doesn’t know what intellectual property is. Neither information nor ideas are — in themselves — IP. Ideas have to be “reduced to practice,” which may earn you a patent, or expressed in a work of authorship, which will get you a copyright. Mere ‘information’ doesn’t qualify for either. (Closely held information might rise to acquire trade secret protection, but Reich doesn’t consider that.) More to the point, Reich incorrectly states “without government decisions over what [intellectual property] is, and who can own it and on what terms, the new economy could not exist.”
While Reich is correct that governments define the boundaries of intellectual property, the relationship between IP and the new economy is not what Reich thinks. He suggests that the temporary monopolies granted by the U.S. Government in the form of IP rights are the secret to U.S. Internet platforms’ historic success. They’re not. If there’s any lesson to take away from Internet competition, it is that openness, not exclusion, characterizes the historic successes of the Internet. The growth of the Internet is often attributed to the fact that Internet pioneers made conscious decisions not to claim IP rights in their respective contributions. Today, anyone can enter an Internet market, and competition is always a click away. Highly successful Internet platforms aren’t maintaining their market positions by enforcing their government-granted rights to exclude the competition. Instead, they’re providing compelling services open to all, upon which others may build and innovate, which are in many cases free to the user.
In fact, anyone following intellectual property politics for the last 10 years would know that the Internet industry has been at the forefront of efforts to reform a widely criticized, out-of-control patent system and an imbalanced copyright system — with limited success due to entrenched opposition from more politically seasoned sectors like Hollywood and Pharma. On many days, headlines in the New York Times will frame the relationship between IP and the Internet sectors as a fractious, often adversarial one. Yet reading Reich would leave you thinking that Internet platforms are in the Church of St. Patent, praying the rosary to Our Lady of Perpetual Copyright Term Extension. MORE »