b. Link: IP reform is polarizing and wrecks the legislative momentum.

Wittlin et al ’18 (Maggie, Lisa Larrimore Ouellette, and Gregory N. Mandel, all professors of law, “What Causes Polarization on IP Policy?,” University of California, Davis [Vol. 52; 1193], )

The rise in the global economic importance of intellectual property (“IP”) has been accompanied by a rise in polarization on IP issues.1 In response to both trends, we have witnessed a dramatic increase in empirical efforts to understand how IP systems function (or fail).2 Yet this growth in the quality and quantity of evidence on IP issues has not reduced disagreement on socially optimal IP policy. As one prominent example, when Congress was debating patent reform legislation in 2015, over fifty law and economics professors wrote to Congress to respond to those “who claim there is little empirical evidence available to assess the performance of the American patent system.”3 To the contrary, they contended that “a large and increasing body of evidence indicates that the net effect of patent litigation is to raise the cost of innovation and inhibit technological progress, subverting the very purpose of the patent system.”4 This letter in turn sparked a response from another forty professors who called the studies cited by the first letter “flawed, unreliable, or incomplete.”5 Both letters referenced a surge in empirical IP evidence, but diverged starkly concerning the evidence’s implications. Despite — or perhaps because of — this trend of polarization, there continues to be a cacophony of calls for further and more precise research to resolve IP policy questions.6

Contrary to the accepted wisdom, we believe that efforts to resolve IP policy disputes through additional empirical work may be destined to fail in the current IP climate. To be clear, we think empirical IP work has value.7 Our point is that empirical progress does not ineluctably lead to consensus and empirically informed policy. This hypothesis is based on the premise that facts about the IP system do not drive much of the actual opinion about IP policy. Rather, beliefs about the strengths and weaknesses of IP policy often exist prior to, and regardless of, empirical evidence. Of course, some debates focus on the fundamental goals of IP, and such debates could never be resolved through empiricism.8 But even within the dominant utilitarian perspective, we have more empirical evidence than ever before, yet seemingly even less agreement on what this evidence indicates. Disagreement may persist in part because most people pay no attention to empirical IP work and simply stick to their priors. For example, we suspect that many of the scholars who signed the antiand pro-patent reform letters did not spend significant time evaluating the empirical studies referenced in those letters. But we believe that even those who do engage with the empirical literature are unlikely to change their minds.

The failure of evidence to resolve contentious policy debates is not unique to IP; this phenomenon has been well documented in the literature on “cultural cognition.”9 This literature demonstrates that when particular beliefs on issues such as climate change10 or gun control11 become important to defining group identities, people are more likely to use motivated reasoning to credit evidence that confirms their views and to dismiss evidence that challenges their beliefs on those issues. When factual beliefs become intertwined with cultural identity, new evidence does not bring people closer to a consensus; instead, it polarizes them further.12

Cultural cognition research does not serve only to diagnose the problem; it can also help craft solutions. The Cultural Cognition Project has the “explicit normative objective” of identifying ways society can engage in evidence-based policymaking without degrading or excluding any cultural group.13 Research in line with this goal has identified several mechanisms for mitigating bias and polarization, including methods of communication such as framing, using culturally identifiable experts to communicate the information, imbuing the information with culturally congenial meanings, and presenting the information in the context of small deliberative groups.14 If cultural cognition does explain IP polarization — if people’s views on the strengths and weaknesses on IP policy are indeed culturally driven — these communication techniques might serve to minimize cultural polarization on IP and allow empirical work to influence policy debates.15

This raises the question: does cultural cognition influence people’s perceptions of the risks and benefits of IP policy, or is the division primarily based on other factors? To answer this question, research is needed on subjects with strong views on IP policy. National conversations have formed around the issues of climate change,16 gun control policy,17 and mandatory human papillomavirus (“HPV”) vaccination,18 but there is less national focus on the risks and benefits of patent and copyright protection. This is not to say that the general public has no views on IP — from the online pirating of music and videos to the patenting of genes, there are many IP stories that percolate into popular media.19 One of us has found that the general public tends to view IP law as designed to prevent plagiarism and to believe that IP rights are too strong.20 However, IP experts likely hold stronger views about IP policy than members of the general public. If cultural conflict is brewing, we should find the strongest evidence of it in the expert community.

There is relatively little evidence on how experts view IP. Recently, James Daily analyzed the signatories to the two letters mentioned at the beginning of this Article, concluding that signatories to the second letter — criticizing the letter that criticized the current patent regime — were more likely to be registered patent attorneys and Republican donors.21 We are not aware of any other studies of polarization in IP experts’ opinions on IP policy.

This Article presents an original study of the factors influencing expert views on IP policy. Given the relatively small number of public commentators on IP issues, we focused on IP practitioners more broadly, who seem likely to be the largest group of people likely to have thought seriously about IP policy and formed views on what works and what does not. Many scholars and commentators are engaged in IP practice, and IP practitioners are primary consumers of IP commentary. In addition, there is significant interaction between scholars and practitioners at conferences, in bar associations, and on IP policy matters. In addition, we were concerned that members of the legal academy would be familiar with our prior work, would anticipate our hypotheses, and would therefore be poor survey subjects. Finally, we have each personally observed polarized IP discussion among practitioners in various fora.

We surveyed 129 IP practitioners from across the United States. We asked these attorneys about their practices, including how they divided their time between different fields of IP; we asked them about their views on IP policy, including their reform preferences and their opinions on the best justification for having IP laws; and we asked them a battery of questions to determine their cultural worldviews. Finally, we collected demographic information.

Our results supported our hypothesis in part: cultural cognition appears to have some effect on people’s IP policy preferences. In particular, subjects high in either “hierarchy,” a measure of a person’s preference for social stratification, or “individualism,” indicating a belief that a person’s well-being is his or her own responsibility (both of which correlate with conservativism), were more likely to believe that strong patent rights are necessary to spur innovation. We did not find a similar result with regard to copyright or trademark law, perhaps because few of our respondents have spent significant time on these issues — our sample was heavily skewed toward patent practitioners. Attorneys who had spent more time practicing patent law believed in stronger patent rights, perhaps out of a desire to believe their work is meaningful. In addition, subjects who said that the primary purpose of IP law is to incentivize innovation tended to advocate for stronger patent rights, while those who said the purpose of IP law is to protect people’s natural rights in the fruits of their labor or to prevent plagiarism advocated for stronger copyright protection.