The PRO CODES Act, which Re:Create and its members have consistently opposed, gives private companies and associations a monopoly over the legally binding codes and standards that shape our world. It takes a certain mentality to think locking up the law is obviously good policy; let’s call it Landlord Brain. Landlord Brain says that the only way to support an important resource is to make it someone’s property and set them loose to collect rent on it. Landlord Brain says only a fool would make or do anything if they didn’t think they could charge rent for it. Last week’s PRO CODES hearing in the IP Subcommittee of the House Judiciary Committee featured some striking examples of Landlord Brain. All of the standards development organizations (SDOs), for and against the bill, were predictably pickled in Landlord Brain, but sadly, so too were most of the legislators.
A poignant example of Landlord Brain came in Chairman Issa’s opening remarks, when he argued that patents were crucial to pathbreaking research on the human genome. In fact, the opposite is true. It is generally recognized that one of the Human Genome Project’s great breakthroughs was the extraordinary speed of discovery enabled by the global agreement to share genome data publicly within 24 hours of discovery, and not to seek patents in the data. The Supreme Court eventually held that the Constitution does not allow patents in human genetic information, nullifying early attempts to literally own human nature.
The Human Genome Project was a watershed moment for open science. Thanks to its extraordinary success, scientists increasingly recognized that knowledge moves farther, faster when research data is shared as widely and freely as possible, rather than locked up behind copyright and patent barriers. Re:Create member SPARC is at the forefront of the movement for open science. The open model was repeated in the sprint to understand and fight back against COVID-19, with research shared widely and openly to accelerate discovery and save lives. In science, Landlord Brain is both offensive in principle, AND self-defeating in practice. Open science is better science.
Of course, the whole raison d’être of PRO CODES is pure, unadulterated Landlord Brain: the idea that the only reason anyone would spend time and resources developing codes and standards is so they can charge rent for the results. In reality, sometimes it’s possible, even essential, to find sustainable ways to set your work free. When Landlord Brain takes hold of something that should be free, like science or the law, it gets slower, more expensive, and less effective. Congress should resist Landlord Brain and reject PRO CODES.