Engelberg Center Live!

Proving IP 2019: Proving the Need for Reform

Episode Summary

Proving the Need for Reform: How are issues identified as 'ripe' for reform, and what is the best way to shape the reform process in the area of intellectual property? Featuring Amy Kapczynski (Yale Law School), David Kappos (Cravath, Swaine, & Moore), and Chris Lewis (Public Knowledge), moderated by Jason Schultz (NYU Law).

Episode Notes

Full video of this panel is available on YouTube.


Episode Transcription

- So, most of this conference has been about proving IP in the context of litigation, and changing IP laws in the context of common law and traditional opinions. But we've been largely overlooking the fact that all of that happens within the construct of statutes and thinking about what the ground rules are as they come down from various legislatures. And so, I'm excited this last panel to really talk about other ways of thinking about the rules and the structures that govern proving IP and other ways to change those rules besides directly to the court. So with that, please join me in welcoming the final panel today on proving IP, proving reform.


- All right, thank you. So, I'm Professor Jason Schultz. I'm one of the Engelberg Center co-directors, but I also run Technology Law & Policy Clinic here, as part of the clinical program. And I was also one of the co-directors of the Samuelson Technology Law and Public Policy Clinic at Berkeley before I came here. And one of the interesting things that I get when we have kind of, the Student Clinic Fair in all the students are shopping around for what they want to do with maybe their second or third year of law school. So, what's the difference between law and policy? Right. And it's a really interesting question, right. It's a fun conversation. But one of the things that I love about it is talking to law student and lawyers and people, especially those who care passionately about improving the status of the world. More broadly is, what are the possibilities of policy to change the world, right? And what are the mechanisms of doing that, and how do you get done, right? And so what I'm particularly excited about for this panel, is to kind of, indulge in that question for a moment around questions related to intellectual property. And I say related, in the sense that many of the issues that our guests on the panel our speakers will talk about, having an IP component to them, but also are part of a broader set of thinking about social welfare and the benefits of, you know, why have IP at all kind of, to begin with? So, I'm going to about each speaker to introduce themselves. I believe, me reading off a sheet is not very good. But I am gonna prompt each one to kinda and talk one by one about reform issue, policy reform. One or two things that they have worked on personally. Kinda talk a little bit about like, what drove them to get involved and also like, what proof did they feel they needed to bring to the table to get it done? And when I say proof, kind of the way of thinking about this, similar to the kind of frame of the overall conference of like, assume the doctrine is a doctrine, and assume the judicial system is the judicial system. What do you need to bring to the party as proof? And so, if we're gonna assume that the political system is the political system we have, and not argue that we should change the political system itself, we assume there's money, there's lobbying, you know, there is these kind of things. But when you want to advocate for policy reform in these areas, what do you need to muster? What do you need to bring, gather, and then how is that affective to try to prove your points or to try to push your agenda? So, we're gonna start off with Amy Kaperynski, who is a law professor at Yale, it has done several different amazing projects to work on reform around this. And I'm gonna let her talk about something that's very much in the news these days.


- Great, thanks so much for having me. It's a real treat to be here. And so, by way of introducing myself, I work on intellectual property, particularly in the pharmaceutical domain. Also regulatory law increasingly. And I would say broadly, both questions have held justice in political economy. So, the things I've been involved in, that I thought I might touch on, given Jason's question our efforts to address high drug prices. So both legislatively, 'cause I've been involved in a lot of those recently, but also efforts to get the executive to take action, given the set of rights that it has. Both, background rights like section 1498, but also recently, actually yesterday worked on a hearing that the House Oversight Committee had about a drug called Truvada, where the CDC actually holds the key patent right that it could use to bring the prices down. That's another areas of a kind of avenue for high drug price advocacy that I've worked on. And then there's been a variety of things I've done to work on transparency and quality of clinical trial data. So, in thinking about sort of how data is used, evidence is used in these different fora in different kinds of policy debates, is your first question that you ask, is to think about, is data important? And I think it has been in all those areas. And it's been most important, I would say it's had the most effect, when we think of evidence in the way that scholars do, and data that way that scholars do in areas where there's sort of political agreement, right. So, in the drug pricing areas, we've got a kind of political settlement about the length of patent terms and about, you know, sort of antitrust. And so, evidence about REMS abuse and evergreening, and pay for delay and sham citizen petitions. All these kinds of things have actually had a lot of impact, and we've seen a lot of things that I think will maybe go through this, you know, in the next cycle or two, to sort of, Again, these are not huge in a way shifts, in the drug pricing landscape, but they're areas where evidence and a lot of the work that academics have done has in fact headed out of impact, and as academics who are constantly being asked to advise our legislation of those sorts and evidence matters, I think there's a whole set of, kind of, bigger political questions about how much do we want to bring drug prices down? How much do we want to address the real political question, of the shape of incentives in this area. That's a lot harder, and I think evidence matters less. You get into deep ideological questions about how to think about the market in the state. At least it gets written ideologically. You know, I would say that conversation too is being driven. But I would say, less by evidence than by a lot of very personal stories. So, when you go to DC now you talk to any, almost any congressperson about insulin, they're extraordinarily interested in insulin. And that is in part because, their finish ordinary stories about individuals in the United States who've died because they couldn't afford their insulin, because the price of insulin has gone up 400 times in the last 10 years, although the drugs are old. So those kind of personal stories are extraordinarily important as evidence. But obviously of a much different kind, and that can help shift the political dynamics, I think too. So I could say, I don't wanna go on too long. But you know, this work about clinical trial data, there's a lot of, again I think, role for evidence. There's a huge medical literature about the problems in clinical trial data and about the need for more transparency in clinical trial data. We've been working to try to connect that up with a revelatory process. The FDA's actually made a number of changes to make it more accessible, where companies really resist that. FDA resists too. And so there, we've been working on litigation in trying to actually get data out of FOIA and other kinds of things to try to better, create a better evidence base for whether drugs work and are effective. That's really hard, and it gets to some of the problems of the use of data the change law or policy, which is to say, in this context, you know, we're trying to prove in both a macrolevel and in an immediate case, right, that there is a lot of public interest in the state of being available, and that there aren't a very strong commercial arguments for keeping it secret. But that's actually really hard. Like, resource intensive to prove in any particular case. And that has to do with in some sense, how capacious the arguments the companies can make about their commercial interest, and how hard those hard to disprove how fact intensive that plight is. So, I guess I will just say then, a couple of maybe broader things about what I think about the dynamics of evidence in policymaking. So one, is just that a lot of the problems are political, and evidence is of sort of less, It does less work. I think, when the questions are for example, like, should we have a drug pricing kind of system that prioritizes access for people who, you know, are poor? That's like a political question about which, you know, we have to make political decisions. But the other is that I think we need to think also about evidence production and it's political economy itself. It takes so much work to produce evidence, and in some sense one of the background problems that I thought is worth mentioning, is that a lot of these areas of law, were set up without evidence to begin with. And those of us that want to change them, have to produce a lot of evidence to change them, right. And it's like, where was the evidence that we needed a 20 year patent term, or that we needed, you know, formulation patents or that we needed, you know, data specificity. Like, where was all the, There was not really an evidence base for all of those moves. And yet trying to move it, you often get asked for ironclad evidence that this is not gonna impact innovation in a negative way. That dynamic I think, the way that the baselines are set, So, who has to have evidence and who already sort of gets to take advantage of the law as it exists, that was not created with evidence in the first place, is just something that we have to think about. It's an issue to in these cases about, corporate confidentiality and clinical trial data. It's do we have to prove that there's benefit and not commercial harm to get that data, or does the company have to prove that there is not. Like, in this set up, it's much harder for us to prove that the confidential corporate data is valuable and is not gonna be of any commercial consequence, than it is for the company to prove. So, think about those baselines, I think is really important.


- Yeah. One thing I think we've heard to the whole conference is this connection between what it means to prove something and who has the burdens of which part of that. One thing I just want to ask real quick before we moved today, is you mentioned academics. And one of the things that I've noticed about your work, is the interdisciplinary nature of it outside of law. And I just wondered if you wanted to talk for just one second about what have you learned from some of these efforts about working across different disciplines and how important is it or not. Because I think, you know, there is this tendency I think in law schools, to be like, what here's the answer. And you know, push push push. But then, you know, it's obviously a lot more work. And we talk about the amount of work to create the evidence. It's also a lot of work to create interdisciplinary coalitions of, even academics alone to kind of agree on whatever forum might look like.


- Yeah. I do do a lot of work with people in the health sciences, particularly. We have worked for years on paper sometimes that are generating original data sets or analyzing data because of their value. And I think that's useful for them, because they don't know how to ask questions in a way that's relevant to policy debates, and it's useful to me because it helps bring evidence to policy debates. That said, I think that lawyers get disparaged, is not being sufficiently, sort of technically sophisticated either by economic arguments or about data. And I think to me that's a problem, because there are underlying things that we're actually pretty good at thinking about, which are how institutions work, how politics work, how law works and then balancing lots of different kinds of interests they can all be cast out through one lens, right. And so, I think we also bring important things to the table that we need to not be, I think, too,


- Differential.


- Yeah. Too differential. Just not acknowledged, right. Actually, lots of laws aren't built around the question, what's most efficient? And so, if they're built around the question of what's good faith? Then you need, you know, not necessarily. Those are not necessarily technical questions or questions that are supposed to be answered but somebody in a medical school or economics department. They might be questions that ought to be answered by people who offer the kind of styles and reasoning that we do.


- Great. Well, we'll come back to this. So Dave. Dave Kappos, as most of you know, was for a while the head of the patent office. But was heavily involved, both before that and ongoing with efforts and questions around patent reform in general and specifically the American Invents Act. Would you walk us through, from sort of your personal perspective, some of the lessons learned and takeaways from some of your various efforts in that realm?


- Okay. Thanks Jason. Pleasure to be here at NYU and to participate. I love the fact that the topic data and intellectual property as Amy I think, correctly points out was not something that would've been on anyone's agenda 10 years ago, certainly not 20 years ago. But now we've got a whole conference organized around it. So, thanks to the folks here at NYU for doing that. I think it is tremendously important, and we've come a long way. So my perspective, partially coming from, you know, my time inside government trying to influence policy using data, and partly coming from my efforts from outside government doing that. Frankly, mostly on the pro bono basis, is that indeed a lot has changed, and a lot has changed for the positive. And I think the point that Amy makes, that a lot of these laws didn't come into place based on data, and now in order to fix problems, whether it's on the side of trying to ensure that the IP laws and their interpretations are not too strong, or on the side of trying to ensure that they are strong enough, we find ourselves being confronted with, where is the data? And it is an interesting new dynamic. What has changed though, in my view from inside the government, is that we finally became focused on putting people in place in collecting data and talking about it and putting effort into it. And it actually all started in my view, in the later part of The Bush Administration, when the USPTO was first given the mandate to create an Office of The Chief Economist. That never existed before. There never was any recognition of the need to tie the intellectual property system to economic outcomes, input output is, and et cetera. And it was at the same time that WIPO, the UN IP Agency in Geneva put it's first chief economist at place in the same time that EPO, the European patent office did the same. And so, one of the things that I got to do when I got into the government, was put a chief economist in place. And we did that. And that then led to a number of things, including conferences with economists. Not lawyers, not patent people. Not trademark people, not copyright people. But economists. It led to bring economists into the agency on stents if you will, on sabbaticals. It led to, what I think has become known as The Industries in Motion Study that was done jointly between the USPTO and the Department of Commerce which has a lot of great statistics. First time ever, that an effort was made to get the data to show how intellectual property intensive industries contribute or don't, to the US economy. It was so good, that the Europeans did the same study. And then we did the study again, three years later so we could measure change over time. So there were, in my view, big changes that have occurred, starting with this fundamental recognition on the part of the legislature signed into law by the president that economics needs to play a role and data needs to play a role. So that's the, sort of the comment I'd make from inside. The comment I'd make from outside, Jason, is that I do agree as someone who's spent a lot of time with members of Congress, speaking with them and their staff, all on a pro bono basis. I don't represent anyone when I do that. That anecdotes continue to play well, and to have a lot of sway. Inside the Beltway, we refer to anecdata. And it could be a little dangerous at times, because you can find a story to stand for any point of view or any proposition, and that doesn't mean it's the right thing to do. But by the same token, let me give you a couple of examples, where data has started to play a role in a particularly pernicious and challenging area. This is The Patent Act and the statutory subject matter, struggles that we're having, what we call section 101. In fact recently, the study Dave Swarts that probably many in this room have seen, that is actually for the first time that I know of, gone out and on the hard legwork to actually interview people who tie the patent system to economic outcomes; venture capitalists, private equity. You know, those kinds of folks. And say, so, how is the patent system affecting your decision-making? And Dave learned a lot. Published that in a great study. A lot of great data came out there. The other example that I'll give, and that study's being cited now in Congress. Being used in the discussion in the debate, and is finally enabling us to say in fairness, that patents have a strong correlation with investment decisions in some areas. Think healthcare. And they actually don't have so strongly correlation with investment decisions in other areas. Think software. You know, a lot of us, including myself suspected that for a long time. Now we're getting some evidence of it. The one other thing I'll mention is that in the international areas, this is something I was personally involved in, when I was asked by a senator, why any of his colleagues would care about the fact that section 101 and it's constrained interpretation in the US, could be setting our patent system back? And I answered, I think it's true that you could now get a patent for computer software or life-sciences in the diagnostics area more readily in the People's Republic of China, than you can in the United States of America. And he said, okay, that would definitely be interesting to my colleagues. Could you get data to support that? So I went out, and I got the data to support that, and it required a lot of bone grinding work. People in this room know how retail that is. You could actually study hundreds of patents and read their file histories and separate false positives and all the garbage to curate data sets. We did it, and we were able to show that indeed it has become clearly easier to get a patent in China or Europe on certain areas of software and healthcare diagnostics than in US. That led to a study that was presented to Congress, again, based on data. And I think that is made it way through the debate and is having an impact, 'cause it's hard to argue with data. So, just a couple, few examples both from inside and outside the government. Data does matter and were getting better at it.


- Great. So, Chris, why don't you weigh in on your perspective and also talk maybe a little bit about Public Knowledge as a DC-based group, and in some ways maybe even about this anecdata question, I think is interesting from your point of view, since a lot of the issues that you work on how to deal with the anecdata of the entire internet to some degree, right?


- Absolutely. Yeah. First, thanks for having me here. I loved being here these last two days, hearing amazing speakers and really smart attorneys. I'm not an attorney. I'm a lobbyist, or as we say in the public interest community, I'm an advocate. And you know, my job is to advocate for what we think the law should be, where I really have enjoyed two days of hearing analysis of what the law is and how to make our decisions based on it. But because in policymaking, because I think it's based on what the law should be, it really is amorphous and it boils down to being able to convince people to agree with you for their own reasons. And I think David's last story about China and IP is an example. You know, if you start with the question of well, what's going to move my colleagues to agree with me on this? It might not be for my reasons, but it might be for their own reasons. That's a lot of what we try to do in our advocacy. You know, there's a real hierarchy in my mind of what works when you're proving that something should be reformed, when you're proving that something should, when the law should be structured in a specific way, it starts with the data. About what is correct and what is incorrect. Before I came to Public Knowledge, we've been around since about 2001 as a public advocacy group, and we've really cut our teeth on both intellectual property and broadband policy. I came from the broadband policy side and I worked in the communications commission. That agency is like a lot of agencies, is dominated by engineers and lawyers, and as neither, I've made friends with the engineers because the technical knowledge and the data always comes first. And when I left the Federal Communications Commission and went to public knowledge, we were just coming off of the 2011, 2012 SOPA PIPA legislative fight. I think there was some background materials that were on the website. One of them had Bankler's description of that campaign, There's great charts in there, where you could find articles at different points to your campaign online, describing why folks on our side were concerned about that law moving forward. But there were two things that moved that debate to stop that legislation. Number one, was the data that was presented by engineers and experts who understand how communications networks work, how the internet works and introducing certain sorts of checks or certain sorts of filters would have on the structure and the functioning of the internet, and those are were the engineers. And the first time I've heard of SOPA PIPA was when I was at the FCC, when folks from our Department of Engineering, came up to me as a legislative guy and said, hey, are you following this bill? And I said, no I'm not. Tell me about it. And they broke that down for me. And then we proceeded to see that in some of the congressional hearings, up to the point where when we really start to build momentum, you had congressman like Jason Chaffetz saying openly at hearings, we've got to get the nerds in the room to explain how this thing works. So, data is extremely important. But it doesn't always trump things. Jason and I were talking before, and he was saying, okay, we understand. As you said in your opening, there's money and there's lobbying. Let's not just talk about money and lobbying. You know, I'm a lobbyist. Money and lobbying is important, and different folks will have different anecdotes or anecdata. And how do you balance that or how do you prove your argument against someone else's anecdotes or anecdata? And so, what I think comes out ahead of money and lobbying, and this is where good policymaking happens and therefore good policy reform happens. What trumps it is people. We saw that in SOPA PIPA. Certainly the blackouts, the internet blackouts that grabbed the attention of legislators who hadn't heard that was a problem yet. When that happened in January 2012, it really stopped that legislation cold. It doesn't have to be in a negative effect though. In 2013 and 2014, I had the pleasure of working on a really small bill that dealt with the 1201 procedures of The Triennial Review process at the Copyright Office. And it all spun up because for the first time after three consecutive Triennial Reviews, The Copyright Office decided to make it illegal to unlock your mobile device in order to move it to another network. And that just struck at the core of people's values in a way that we didn't expect. Public Knowledge, we will monitor policy. We'll write about it. But it was amazing to see, as we started to write about it, how many people grabbed onto this idea that, wait a minute, I paid for this device. I own it. And in a digital era, does ownership have the same value that it used to in an analog era? Those are important values to people. And so, it led to hundreds of thousands of people signing a petition, saying that they wanted that decision overturned. Now, they didn't know where that decision could be overturned. And we ended up passing a small narrow bill that overturned the decision of The Copyright Office. But it took galvanizing people's story and their understanding of certain values. People and values, trump money and lobbying. It's hard to galvanize, and it's hard to organize. But if reform is important enough, it has to be communicated in a way that presents those values to average Americans, in order to speak up and overcome what could be a well-funded lobbying by someone who may or may not be correct on what values should hold sway in policymaking. So, that's kind of my hierarchy. Is it right or wrong, technically. Do you have the money in organization to lobby. But if you don't, how do you get folks to talk about values in a way that impacts policymaking. One more anecdotes if I could. We saw this recently in Public Knowledge when we worked on the MMA, The Music Modernization Act, which I didn't really get to spend a lot of time on. My colleague, Meredith Rose did, and she had to testify over at the senate. We opposed that build, originally. And we really agreed with some of the goals and the values of the bill, that there are artists who were not being compensated for their work. They were being left out. But we introduced the new value to the conversation that allowed the bill to be modified in a positive way, and then ultimately got public knowledge and support. And that was the importance of, in a digital world we could lose old, especially public domain art. And so we testified about that, and brought examples and we galvanize the archivists in the libraries communicative talk about the importance of preserving our culture and our history, even beyond value of folks being compensated for their work and how that's an important balance in the values of copyright. And it held up the bill enough, that we were able to get amendments included. So, talking about values is extremely important. It can make reform better and it can sharpen reform.


- Great. I'm gonna ask just one more general question for all of you for all of you, then invite others to come up to the two microphones we have on either side, if you want to give your own examples or ask further questions too. So, part of the calculus, I think in any kind of reform effort is to try to, I mean, I think Chris is your example of timing in those particular context, I think the timing of drug price reform right now is sort of, particularly interesting. So there's sort, I think, a momentum timing kind of component there, but also the media and kind of like, thinking about journalists as constituencies. There are of course journalists who would just print a quote because you said it. But there are some journalists were some media outlets, who you kind of have to prove to them to some degree that what you're saying has merit behind it or at least that it's an important point of view you or something like that, right. And I was wondering if any of view wanted to comment on what role, what kind of engagement with media matters or doesn't matter for these kinds of debates? I mean, you know. There's obviously gonna be coverage of something if it's hot. But is there a kind of way to think about, 'Cause obviously, you're not gonna, not in the same way that you would take it to a staffer or you know, in the court a judge, or even a regulator, or the engineers inside the FCC or economist are gonna have a different kind of conversation than you're gonna be able to have with journalists, right? So, I just wondered if any of you want to comment on the thinking around, how do you then translate it into those kind of constituencies and audiences who will then, in theory, take your message and communicat it further?


- I mean, media is hugely important. I mean particularly, if you're thinking about legislative reform, but also executive action. And you know, I think we've had a lot of success in working with journalists. You really do you, sometimes have the luxury of spending weeks on the story. We really will talk to a lot of experts and try to really get the story right. I mean, one example that I just mentioned when I started, of the government's, CDCs on Truvada is a big story in the Washington Post that broke that. There was a lot of work with that journalists and of time. Getting a journalist comfortable with and providing technical analysis in the patents because I used to think the company says that's a bad patent. It helps and journalists really want to know, is there evidence that this patent in fact is good. And there is. So those kinds of things actually, when a journalist have the time, you know, they really, I think one of the issues on our side, is we don't have the time to work with journalists. I get calls from journalists, I mean, I get calls from journalists, several a week who wanna talk and want, I think, to engage with people. Neither I think, constitutively so well disposed the effect of the media on a constant basis or just free to do it. And I think, that's one of the things that I think centers and kinds of academic institutions can probably help bridge a little bit of the gaps. But it's hard.


- Well, just add to that, I definitely would agree that the media plays an enormously important role as a shaper of the public's view. Particularly about the intellectual property system where it's not naturally something that the public finds easy to understand.


- Then they'll work up in the morning and read the Constitution or FO1 section 8 clause 8. No.


- It's starting. Well, there is that issue, Jason and then there's an even more fundamental issue, which is that people see the prices they're paying for today's drugs and they naturally want treatments that are in the marketplace today, as inexpensively available as possible. It is terrific hindsight issue and a terrific amnesia problem. The question that journalists need to ask, and I think the better ones to ask, is for those diseases that haven't been cured, talk to the parents of the children who are suffering in hospital beds from those diseases and asked them how much they'd be willing to pay for a cure, and you get a much different answer than you do from the person who's talking about the disease that's already been cured, and everyone's looking for the cheapest price. And so that's where the media, I think, has been increasing, playing a more positive role, asking the harder questions requiring data, looking into things. I think I've seen a change for the better in that regard, particularly in the major media where they have, if you will, some luxury to be thoughtful and to study things. And at least my technique for dealing with the media is to have really long-standing relationships. Some of the key folks at The Times and The Journal and The Post, Bloomberg, et cetera, I've known for many years and tried, and not in the context of any story, but just in the context of the system, generally. How is it doing? How is it failing? How is it succeeding what needs to change up and down, and sideways to have consistent ongoing relationships, so these people have a long-term baseline and to get a sense of confidence that they understand the direction.


- Yeah, just do your point real quick. The number, I mean, the amount of investment that some of the major publications have made in data science teams and data teams and visualization teams too, I think has changed the way they tell stories. And so, to some degree, the development of data and the capacity for journalists to report on data in various ways, is also a bit interesting. But yeah. Chris, what about you?


- No, I would totally agree. I find that most journalists we talk to care about probably two or three different things. Number one, is that data. If they can explain an issue well, they're serving the public well. Number two, is just a creature. Being a creature of Washington is the who's up, who's down. And it's strange how that factors in with the actual factual date of the policy. The longer something drags on, the less reporters want to write about it, 'cause it's just not news to them, no matter how often they put the data in the article. And so, the third thing is this natural, Because of that, and that natural rhythm and momentum of policymaking is very important. And so, being able to demonstrate that not only do you have the data that backs up your argument, but that more and more people, hopefully because of the original articles that the journalist wrote, our understanding the importance of reform. And so, showing growth feeds that sense of momentum and gives, you know, if you could find other stakeholders, other viewpoints to back up that data or to give a different anecdote, that can just be another story that builds on your momentum.


- Great. Well, I always hate being the panel that holds people up before lunch. But if we have one or two questions, we'd be happy to take them. And then we can of course, keep talking while we eat until we hear from, Judge Chen.


- [Man] I'd like to ask you more about the kind of rhythm parts of this, right. I'm sure all three of you have a number of reforms that you would imagine if you could just wave your hand and make them happen, you would do it. But there's a kind of ripeness of when is the right moment to move towards a reform effort on any given topic. And so, I'm curious to hear how you think about, not just sort of proving the case once it's time to prove it, but when it's time to elevate an issue, and start making a move to try and make that reform happen.


- I mean, judging examples are a really interesting one, because I do think there's some things that are changing in the world that are making that politically salient and their underlying structural things about co-pays and how they work, and stuff like that, and rising drug prices. But, also behind the scenes, there's been a ton of work, in part from shifting of people who used to work more on international drug prices issues in domestic context. And there's been polling. That's in fact has been supported by sometimes like, you know, foundations and things like that. But also just ordinary polling. Polling, it helps elevate the issues a bit. Often, I think when you get behind an issue, you'll see it doesn't organically rise to the surface. There's actually a fair amount of work. Based on some analysis, this is a big problem and is becoming a bigger problem, and there's a political kinda, But that polling is tremendously influential. It helps try policymakers. It helps drive the media's interest. And you know, when you can show 80% of Americans in a bipartisan way, but this is one of their top issues for government, then that heads up to the surface. But that takes interesting work to produce. And in fact is interactive with all these things like getting stores out there in the media. And so, I think there is. The timing is hugely important, but also it can be influenced by the way that people actually produce data and produce analysis that can drive stuff to the surface.


- I guess the one other comment I would add, is that in the IP policy area where you're trying to change the copyright or patent laws, as examples, not driven by sort of the healthcare drug pricing debate, but driven by something like section 101. The timeline is much, much longer and you're thinking in terms of like, a decade to get something like that done. So in my experience, it's a matter of building the momentum and the constituency over a very significant period of time. There is some sense of waiting for moments and opportunities and things that come along, factual developments or policy developments, or whatever that put wind in your sails, may be just a political timing. But, there's an underlying, gee, you know. You gotta take the first step before the second one, and it just takes a long time in the IP policy area.


- Yeah. I would add, there's just a tremendous amount of educational policymakers. That takes time. If you aren't able to understand that you will have allies on an idea that people will understand why a reform is needed, then you're not ready to move forward. We spend a lot of time writing about things that probably won't be reformed at Public Knowledge. But we want to get those ideas out there and educate people on how technology could be used, or how a policy could be altered to allow technology to be used in certain ways. But that really takes a long time to educate people, and then we also find that there's a change in generations that's moving through Congress right now that's actually interested in entertaining some of these ideas. And so, whether that leads to more reform, will be interesting. Because certainly after the 2011, 2012 SOPA PIPA fight, there was a sense that there's a group of people out there that care about copyright law, that members of Congress had not heard from before. And they were, I think, honestly scared to move on anything without upsetting that large group of American voters. But there's a new generation coming in that's willing to wrestle with the balance of the law in a way that you know, hopefully will be constructive.


- Good, good.


- [Man] Transparency is a great thing. But I have a concern that with the rise of the digital economy and so much knowledge of what's actually happening and more transparency, that it's fueling the kind of populism that's making really good reform, very difficult. And I think we see that across many areas, whether it's immigration or healthcare, or social security systems, and so on. Folks think specifically on IP, in the world there is this movement, this anti-IP movement, I'll say. And it goes, David, to the point that you made, which is, people want cheap drugs now, but they're not thinking about what does it take to actually produce the incentives and to produce the systems that are going to give us great drugs. And it's true in music, and all of the other arts so it's copyright patented; some degree trademark as well. How do we help get the public around the understanding of these long-term benefits, so that really good reform is possible, instead of the populist reform that were seeing? For example, just last week, the FDA issued a rule requiring pharmaceutical companies to include list pricing in their television advertising. I think that's going to actually do much more harm than good. And I see that, and things like that as trying to appease this wave of populism, instead of really improving the quality of our IP system.


- You must hear this argument a lot.


- Yeah, sure. I mean, I think that I give the public more credit than that, I actually think around drug pricing issues. A lot the examples we're talking about, there is not a good innovation argument at all. Right. It's not wrong. If the price of insulin going up 400 times and the drugs haven't changed at all, you know, doesn't have a lot of logic to it, right. But also, I think actually, one, the public can understand. And everybody who's sick and understand the importance of developing new drugs. In fact, people in this country, I think, really overvalue new drugs. In bioethics, we call it the therapeutic misconception. People think that new drugs are going to do much more for them than they will. So, actually think it's a very complicated story about what the public understands about innovation and it's drivers. And in fact, I think the public understands a fair amount. And there's sort of gaps on both sides. People overestimate what drugs are gonna do for them, and how much of a cure they're gonna be and they overemphasize some of the time, what the immediate price barriers are. You know, on the Trump thing, that's not a serious reform. Nobody thinks that they're really trying to do anything. That's just the smallest thing that the Trump Administration can do. And I think if you're like, It's not really trying to draw at any real policy change. I think deeper forms of transparency, if we know more about R&D cost, it is hard to make policy without knowing things like R&D cost and other things. And that's not really about what you play into a TV ad. It's about like, trying to understand the policymaking background and what to do to develop good policy, to in fact adjudicate these interests. We do need transparency for those kinds of things to be better resolved.


- I'll just add a comment. My thinking is that, the Academy can play a big role in this and that the Academy needs to play a role of collecting and disseminating more data and stepping back from advocacy, and instead stepping into a role of stewardship. And for instance, making clear that with respect to the insulin issue, while the prices have gone up a lot, it's not about intellectual property at all. There's a travesty there, but it's not about intellectual property. And anyone who's got that confusion in the halls of Congress, I hope Amy's telling them that and I hope Chris is telling them that and I hope others are as well, to be candid with them about, hey look, problem if there are problems, don't blame them on your favorite scapegoat, the IP system. So think, this notion of collecting data, which this conference is about, it is absolutely great. We need to do more of that. We need to get the data in front of Congress and in front of the decision-makers and in front of the media. And we need to be stewards about putting, if you will, the blame or blame goes, and not creating scapegoats.


- So, we'll take one last question. I just want to say one quick thing though, which is I think this kind of back-and-forth between industry and advocates who are non-industry, right. When I was doing a lot of work at EFF, we did find that the movie industry would put out studies that were not peer-reviewed, where they claimed all the data was confidential trade secrets. So, they would just put out the results of them. And so I do think that one of the other things that is missing sometimes, is kind of equal scrutiny on both sides of studies, and things like that. So, I do think that would help address some of these questions of what's real and what's not, if we had a little more transparency when industries put out studies, or at least that they're peer-reviewed by people who are are not paid by industry, and things like that. So, that's just one thing that I found to be sort of useful in that domain. But yeah. Go ahead.


- [Man] This has been a very good discussion of strategic point about the messages and the like. I have a couple questions about tactics, going back to SOPA. Now, SOPA did get defeated by the enormous groundswell of public opposition. But as I recall hearing, that at one point the White House Chief of Staff asked for the CEOs of the technology companies to come to the White House, to talk about it, and none showed up. That may be a VP of government relations, and there was a perception that the tech industry wasn't going to put itself out in that fashion. The CEOs wouldn't be bothered, whereas you know that Hollywood CEOs are going to show up multiple times. You know that the best looking actors and actresses are going to show up, the most popular singers are going to show up. And is that a failing, or was that just a blunt? Because after all, SOPA failed. Second question is, is it right to think in terms of campaigns for policy change? Is the game American football? The play happens, the clock stops. You can spend half a minute or however, huddling and catching your breath and then preparing for the next campaign. Or is it really soccer, where the ball is always in motion? My fear is that one side is playing American football and the other side is playing soccer. And that's not, That's like playing checkers to chess. Is there validity in this, or am I sort of barking up the wrong tree? I'd love to get your thoughts.


- If I could, I think that's a fair description. I could probably be a bit charitable to the tech executives. I think they've learned some of the lessons that you described. You know, if you go back to 2011 and before that, I think a lot of the major tech companies just didn't have a presence in Washington, and didn't understand the value of having a sustained presence in Washington. You're seeing more of that now, and as they're coming under fire, they're seeing that the benefit of having a presence and showing up, you now, and bringing the executive. Unfortunately, I think it's more like soccer than it is like football. The challenge of populism that was brought up is, populism only works in short bursts and when there is a real emergency. Otherwise, folks are pretty set living their lives. And so, this is where I think values conversations are most important. Having folks who are engaged in the continual policy debate that are trusted, that actually tell the truth about studies, tell the truth about data and can be proxies for the greater public. If we had on honest conversations about data, if we had honest conversations about values, maybe you wouldn't have to see a populist alarm pulled so often on intellectual property law.


- One other thought I have, having been in DC and in the government when SOPA PIPA played out, I remember that coming back to, I think, the question that Michael asked before, there was a tremendous groundswell that built up very quickly and what happened within the administration and in the business community, was people ran for the hills and made sure their fingerprints weren't on what was going on. And so I think, probably what was going on, was that the VPs of government programs in Washington DC we're calling their CEOs up and saying, don't you dare come to Washington DC. You want nothing to do with this. Everyone went into damage control mode and tried to get out of the way of the thing. So, that momentum, right, groundswell issues significantly played into what happened with SOPA PIPA.


- Just say one last thing. I guess which is to say, from my perspective, we have less to worry about with populism, as sort of people getting more involved in the political process than the opposite. And that's in part, You know, there's evidence for that, right. If you look at the work of Martin Guillen's and others it shows that particularly, poor people or middle-class people, even when they have policy preferences that diverge from elites, don't get what they want, right. And that's in parts of the soccer game, right. And I think that there's a lot of examples that we can cite from the kind of field that we work in and lots of others where things, that in fact there's lots of good evidence to say either, we don't have a reason to do it this way or this is harming lots of people. They don't get changed. And so, I feel like what's interesting about this moment, is that there is more the Overton window , right. There's just more opportunity to make substantial arguments for change that those of us engaged in these issues have to come into to be constructive. As you say, bear it with the right kind of change, but to also change the window of what we can talk about changing, right. So like, on the innovation in pharma question, there's a lot of reason to think other models of innovation ought to be more, much more explored than they are, for example. That's not the kind of thing you get out of the game of soccer that we live in. That's what you get, when suddenly you get a lot of Congress people focused because the political world has changed, and constituents are demanding. They don't know exactly what they want, but they're demanding change. And we gotta come in and provide the tools to say what kind of changes we bring.


- Well, speaking of demands, I'm sure many of you are demanding lunch. Join me please, in thanking the panel.