Clever Geek Handbook
28 February 2026

Surviving a Layoff

Recommendation

In Country Western music, sad songs about losing your job have a special niche, something a little more wistful than David Allan Coe’s hearty “Take This Job and Shove It.” Merle Haggard’s “If We Can Make It Through December” is about a worker who gets laid off from his factory job at the end of the year. In “These Days I Barely Get By,” George Jones moans that his boss plans to lay everyone off come winter. No question about it, getting laid off is even tougher to handle than losing your dog or your pick-up truck, two other sad themes in country tunes. But getting laid off also can signal a time for renewal, starting over and moving ahead in an exciting new direction. BooksInShort finds that retirement expert Lita Epstein does a very solid job of showing you how to cope with life after a layoff. She explains how to make the best of a bad situation by taking practical, weekly steps. Her book will help you achieve a heads-up state of preparedness and – if you do have to pick up your guitar (or laptop) and hit that lonesome unemployment road – she tells you what song to sing next to get back in the saddle.

Take-Aways

  • Layoffs are increasing and millions of people are now out of work.
  • Sometimes you can spot a layoff coming, but sometimes you cannot.
  • If you get laid off, preserve your health insurance and get a letter of recommendation.
  • People who lose their jobs go through a grieving process similar to the turmoil of losing a loved one.
  • Your first week out of work is not the time to look for a new job.
  • If you are suddenly laid off, first evaluate your assets and liabilities.
  • Next, assess your work capabilities and strengths, as well as your interests.
  • Think carefully about any new employment direction you might follow.
  • Be measured, deliberate and controlled about your job search and interviews.
  • If you can’t find work within a reasonable period, consider a new career as a freelancer, consultant or contract worker.

Summary

Here’s Your Pink Slip, There’s the Door

Layoffs are a major problem. In the United States, unemployment has reached record levels. Many long-term laid-off workers are settling for lower-paying, part-time jobs, and some have quit looking, started their own entrepreneurial ventures or gone back to school for retraining. Have you been laid off? If not, are you liable to lose your job if the economy doesn’t improve? When it comes to a layoff, you will be better off if you know in advance what you could be facing, what your rights are and how to deal with such a difficult situation.

“You may never see or hear any warnings about a layoff.”

Often, you can spot a layoff heading toward you. Is your workload lighter than normal? Budgets tighter? No new hires? Are new faces showing up at work, such as possible corporate take-over buyers? These are signs of a potential layoff but, sometimes, people get no warning. One day you have a job, the next day you don’t. U.S. workers have few rights in case of termination (except health insurance extension), but you can make a case if you get fired due to discrimination.

“Most people will be laid off at least once...and many will be laid off multiple times.”

Employers do not have to pay severance wages to those with “at-will” employee status. Often, however, employers provide some type of severance to laid-off workers, generally salary for a period of time from a few weeks up to six months. Private health care is costly, but U.S. workers have rights under the “COBRA” regulations to keep their group health care coverage for 18 to 36 months. If you are laid off, also be sure to get a letter of recommendation from your employer.

Week 1: Now What Do You Do?

Never look for work the first week after you lose your job. Your mind is probably muddled, along with your emotions. Instead, try to come to terms with your new laid-off situation. This will not be easy. Find some way to tell your spouse, children, family and friends about losing your job. When you do, be mindful of your feelings and theirs. This is an emotional time for everyone. Indeed, a job layoff involves five stages of grieving, just like mourning the loss of a loved one:

  1. “Denial and isolation” – At first, you cannot believe that you lost your job. You may unrealistically think that the boss will call soon and ask you to return. Don’t use such feelings as a reason to isolate yourself. Try to stay active and involved. Exercise can help.
  2. “Anger” – As your job loss sinks in, you may get mad. You could strike out at your family and others. Your anger is normal, but try not to take it out on those around you.
  3. “Bargaining” – You may engage in “bargaining” with yourself as an inducement to find work. For example, “I promise to quit smoking if I get a new job in two weeks.”
  4. “Depression” – Of course, such bargains seldom work. Thus, many out-of-work people slip into depression after the bargaining stage. Avoid going down this path. Feeling depressed will do nothing to help you cope with your challenging new situation.
  5. “Acceptance” – You finally come to terms with being out of work. At this stage, you begin to try to fix the situation. Be careful, because you could easily slip back into depression. To avoid this problem, keep as active as possible. Eat well. Don’t take on any new challenges. You already have enough on your plate.

Week 2: A New But (Hopefully) Temporary Lifestyle

Now assess where you are so you can start to build a new future. First, tackle your finances. Determine your assets, what kind of cash flow you need to get by, what your debts are, what your healthcare and benefits situation is, and what you should do with your retirement savings, if anything. Look first at assets you can turn into cash quickly, including stocks, CDs, bonds and so on. Develop a list of people you could ask for money, even if you never intend to do so. List all your cash on hand, any government unemployment benefits and the future cash you can derive from convertible assets. In the U.S., visit your local unemployment office where you may find access to valuable retraining programs and assistance with your job search.

“Whether or not you’ve received a notice, the actual moment of layoff is traumatic.”

After totaling your assets, list your bills. Then make a monthly budget. If you do not have enough cash assets to cover your budget, raise money by selling things. You also might be able to work on a freelance or a contract basis to bring in some quick cash. Look for low-interest or no-interest credit cards for quick cash infusions. If these tactics do not help you meet your bills, contact your creditors and request better terms. One last resort is to convert any pension funds and other retirement savings into cash. However, be aware that tapping into such assets before you retire often provokes fee and taxation penalties.

Week 3: Inventory Your Life

Once you understand your financial situation and have determined how to pay your bills, assess your life and consider what you want to do with it from this point forward. Think about your previous job. Could you have done anything to save it? Can you derive any lessons from your experience that will help you with future employment? List your weaknesses and strengths, as well as what you most liked and disliked about your work. Assess who you are. Consider your personality and the type of worker you are. Maybe this analysis will help you decide to strike out in a new direction or it may confirm your current career path.

“The worst thing that you can do during your first week of unemployment is panic and start looking for work.”

Career counseling and testing may help you figure out your next steps. In the U.S., the National Board of Certified Counselors can help you find a career counselor. When you consider someone, ask about his or her certification and specific professional training. A career counselor could help you identify available work options, develop a résumé and map out an effective job search plan. If you cannot afford a career counselor, your local unemployment office may provide free assistance. Do not venture into the marketplace until you have developed a “layoff story” that reflects positively on you. Rehearse your story; practice until you have it down pat. If you remain bitter or angry about being out of work, you are not ready to enter the job market. Try to put these feelings to rest before meeting future employers.

Weeks 4 to 8: Looking For Work

By this time, you are ready to look for work, so you need a good résumé. Print only a few copies to take with you on job interviews. Primarily, you will e-mail electronic versions of your résumé to potential employers. Make a Microsoft Word .txt file for online posting. Companies now often receive 1,000 or more résumés in response to one job posting, which makes securing work by responding to online listings extremely difficult. Companies initially screen résumés by using keywords that fit the job listed, so be sure your résumé includes probable keywords. For online résumés, list keywords in white font, so the scan picks them up, but they don’t show up or print.

“Don’t be concerned if you seem as undecided as you were when you first graduated high school or entered college.”

Your résumé can go up to two pages. Include all previous jobs that pertain to your job search, even if you held them many years ago. Do not say, “References available upon request.” Create different résumés to fit various jobs. Use active verbs, such as “built” “led” and “developed.” If you are older and have vast work experience, you may not want a chronological résumé. Instead, write a “functional skills” résumé. After your name and contact data, write a summary that profiles your work strengths and career highlights. Include the right keywords. Then add an “experience” section with a few paragraphs describing your skills. Use short sentences that detail your specific accomplishments in previous jobs. Now list your actual jobs in chronological order, then put your educational background. Proofread carefully. A résumé with typos is a dead-end. Post your new résumé on the Web, review and follow up on any pertinent online or classified ad job listings, and contact possible employers until you secure job interviews.

Week 9: Interviewing

Prepare mentally for job interviews by first overcoming the stress you feel about them. Practice deep breathing to eliminate tension. Use visualization: picture something that makes you feel relaxed, such as a beautiful sunset. Do not let other thoughts intrude. If negative thoughts arise, mentally say “Stop!” Such “thought blocking” can be highly effective. Plan a checklist for your interview; be prepared for categories you think will arise. Draft succinct, compelling answers to inquiries you can anticipate, such as, “Tell me about yourself.” “Why do you want to work here?”, “Why are you the best person for the job?” and “What are your goals?”

“Company websites are a great place to find job postings that get fewer hits than those at big online job search sites.”

Make a strong impression at the start of an interview. Smile. Shake hands firmly. Sit straight in your chair. Nod affirmatively to what the interviewer says (but don’t overdo it.) Avoid strong scents or perfumes. If the job manager must halt the interview temporarily, ask if you should wait outside his or her office. Never speak poorly about a former employer. If you have been out of work a while, and the interviewer asks why, perhaps answer that you took time off to think about what you want to do next. If you have worked at many jobs, turn this into a positive by stating that you are adaptable and learn new skills quickly. Do not bring up salary. If the interviewer asks what you expect to earn, turn the question back by asking what the job’s salary range is. After the interview, thank the manager for his or her time. Follow up with a thank-you note by e-mail.

Week 10: Working Again

Congratulations: You found a job and you’re ready to go back to work. As a seasoned worker, you may feel that you can slide right into a new job without worrying about office politics. Not true. You are the “new kid on the block,” so learn the territory before you make any rash moves. Go slow. Take it easy at first, not on work, but on how you come across to fellow employees.

“Loyalty toward a company...is dead. Yes, you should do a good job, but always keep your eye on yourself and what’s best for your career.”

Make a strong impression by always being friendly and positive. Try hard to “fit in” with everyone. One tactic is to join any after-hour company activities, like a softball or bowling league. Be a good listener and a team player. Thank your co-workers as they help you learn the ropes. Let your new boss know how you are doing on work tasks and on acclimation. If your new job is in a field you don’t know well, consider special training or education. Your firm may even pay tuition, although company policies often require you to be on the job for a year first.

What If You Don’t Find Work?

Some people are fortunate and quickly find new jobs. But many are not so lucky. Often, this is not due to any personal failing, but rather is the result of a dismal economy, a severe industry retrenchment or related factors. What if this happens to you? First, stay upbeat, active and engaged. Don’t take rejection personally. However, do double-check your résumé and references. Make sure that everything is just as you want it. If it looks like you may not be able to return to full-time work in your industry any time soon, get busy building alternatives. Enhance your job skills. Take a business class. Become more adept on a computer. Join a public speaking group.

“When you first start a job, no matter how much experience you’ll be bringing to your new position, remember that you are the new kid on the block.”

If you are out of work for an extended period, stay on a schedule. Get up at the same time every day. Plan a full day of activities, whatever they may be. Include time for exercise to clear your mind and make you feel better. Since money will become increasingly important as the months roll by, consider part-time work, even at minimum wage, to bring in some cash. Another way to earn fees is to freelance, consult or become a contract worker. If you do, be as professional in your new work as you were in your full-time job. This income may be the only money you earn for a while as you work hard to carve out a new life for yourself in your new freelance, consulting or contract worker career.

“Don’t even think about starting a new business from scratch unless you have the financial resources on hand to fund the business for a year as well as pay for your personal needs.”

Many laid-off employees don’t ever want to work for a boss again. They are ready to work for themselves. If you have the money to invest, you may want to purchase an already established business to run, but do not overpay for it. Conduct the necessary due diligence regarding the firm’s financial statements. Consider buying a franchise. Or, perhaps you want to start your own business from scratch. If so, don’t jump in with your eyes closed. Research whether a viable market exists for your proposed new products or services. Fully investigate the competition. Create a formal business plan.

“Getting up, dusting off your clothes and restarting your life after a layoff is hard work – but it’s also a great opportunity to reinvent yourself into just what you want to be.”

Life after a layoff can be challenging, but it also can become a turning point. Ultimately, things will be whatever you make them. Your future is in your hands and there’s beauty in that.

About the Author

Lita Epstein, M.B.A., teaches at the College of Graduate Business and Management at the University of Phoenix. She has written numerous nonfiction books on such topics as Medicare and Social Security.

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Surviving a Layoff

Book Surviving a Layoff

A Week-by-Week Guide to Getting Your Life Back Together

Adams Media ,
 


28 February 2026

Managing the Telecommuting Employee

Recommendation

Telework sounds simple. Let an employee work from home. Ensure that he or she has a desk, a computer and a working phone line. Ready, set, go; right? But what if the teleworker has an accident in the home office you authorized? Can your company get sued? What about the teleworker’s tax status, workers’ compensation or benefits? Of course, you might also wonder how you supervise a staffer you may never see, for example, someone who lives on the other side of the globe. Setting up employees in home offices is not as straightforward as it sounds. But, fortunately, Michael Amigoni and Sandra Gurvis phone in everything you need to know in this detailed yet comprehensive book. Drawing on their decades of experience managing remote workers, they present savvy advice on how to develop and run a successful telework program. If telecommuting is part of your company’s future (or its present), BooksInShort recommends this useful managing guide.

Take-Aways

  • Telecommuting programs can help companies reduce costs and increase productivity.
  • However, your firm must choose the right “telecommuting model” and the right workers.
  • Good teleworkers are independent, organized, disciplined self-starters.
  • Setting up a teleworker in a virtual office demands some logistical considerations and budgetary decisions.
  • Thoroughly explain all employment terms and expectations to teleworkers, including salaries, benefits, working hours and productivity requirements.
  • Establish firm communication protocols regarding how, how often and when teleworkers need to check in with you.
  • Provide regular feedback, emphasizing quality, quantity, timeliness and cost-efficiency.
  • When managing “virtual teams” with members across the globe, address cultural differences that may affect teamwork and productivity.
  • To judge the success of your telework initiative, do cost-benefit analyses and examine such factors as “reduced lateness, absenteeism and sick leave,” and employee retention.
  • Telework will grow increasingly popular as technology and business advance.

Summary

The Rise of Telework

Telecommuting or telework – working from home or a nontraditional office – is now common. In fact, 21 million U.S. employees telecommute. This is due, in part, to numerous technological advances in the internet, networking and computing. Telecommuting pioneers, such as Control Data Corporation, made this work option available to their staffers during the 1970s. Because telework cuts down on fuel usage by commuters, it became popular two decades later when the U.S. passed the 1990 Clean Air Act. Around the same time, the Americans with Disabilities Act called for equal opportunity for “physically or otherwise disabled workers.” Thus, telework became an increasingly relevant alternative to working at the office.

“Companies need to rethink the traditional way of hiring, training and retaining employees. Telecommuters are an increasingly large part of this picture.”

Many jobs are suited to telework. For example, software designers, systems analysts, underwriters, actuaries, transcriptionists, collection agents and call-center representatives may do well as teleworkers. Generally, good teleworkers are organized, flexible self-starters who know how to allocate their time and who don’t need managers looking over their shoulders to be productive. They communicate well over the phone and email, and capably balance their work and home lives.

“Eighty percent of Fortune 1000 companies will likely introduce telecommuting by 2010.”

When hiring teleworkers, clarify the position, the work and the company’s expectations. Fully spell out responsibilities, duties, employment terms and qualifications. Specify all the requirements in the employment contract, particularly working hours and availability for consultations with other employees. Integrate new teleworkers into your organization by involving them in numerous face-to-face meetings with their managers and colleagues, at least initially. This enables them to establish a comfort level with other staffers. Provide training to ensure that they have the necessary skills to work remotely, such as time management and communication abilities.

“Virtual Teams”

As telework becomes more standard, many companies are forming virtual teams (also known as “geographically dispersed teams”) of telecommuting employees to handle projects. These teams take various forms, including “networked teams,” in which experts join and leave as needed; “parallel teams,” which handle uncommon or special assignments; and “action teams,” which deal with emergencies. Always match the type of virtual team you use to the task at hand.

“According to studies, telecommuting reduces stress for over half of the workers who opt for this form of employment.”

When managing virtual teams with members across the globe, address cultural differences that can affect teamwork and performance. Some helpful strategies: Have face-to-face meetings, develop a “code of conduct” and employ visuals to clarify communications. Your team’s success relies on its members’ experience levels, enlightened company policies that reward quality virtual work, a trusting corporate culture, adequate training, and effective leadership and processes.

Getting Started

Plan well before establishing a telecommuting program. Assign a committee to decide if telework is right for your firm. On the plus side, telework often means reduced costs, for example, in the need for office space. Also, it can motivate staffers and enable companies to hire people anywhere in the world, including from markets with cheaper labor. On the negative side, remote workers are difficult to monitor. The lack of face-to-face contact can cause miscommunication. And while telework can be a cost-saver, that’s not always the case. You may need to purchase and install special technology for teleworkers, or offer them extra training. To understand the full financial impact of the program, do a careful cost analysis.

“Experts have found that under certain circumstances telecommuting can be even more stressful than office work.”

Gain the necessary backing for your program early in the process. Find internal “sponsors” to decide who should telecommute and what work they should do. Engage “stakeholders” to choose the right “telecommuting model” – the four main types are “departmental, corporatewide, individual and contractor” – and to train supervisors and participants. Then enlist “champions” to help set up workspaces and obtain resources.

The Off-Site Workspace

Teleworkers can operate from various setups, such as:

  • “Home office” – Employees whose work doesn’t involve heavy equipment or large inventories may work productively at home.
  • “Remote work center” – A “minifacility” offers staffers a traditional, though perhaps more casual, office experience at a location closer to their homes.
  • “Shared space” – Employees from different companies participate in an “office time-share.” Often, they work in shifts or according to agreed-upon schedules.
  • “Virtual office” – Telecommuters work anywhere they can plug in to the internet. That includes their cars, the library or a local coffee shop.
  • “Office hoteling” – Teleworkers contract temporary space in a hotel, office building or other location, perhaps for only a few hours.
“Telecommuters may experience resistance and resentment from office co-workers, and in some cases even clients who know about their work-from-home status.”

How you equip an employee’s remote office depends on the assigned tasks and the nature of your company’s business. The employee may need a computer, a laptop, a personal digital assistant (PDA), a fax, a file cabinet, and possibly a printer and photocopier. He or she may also require access to the company intranet and certain software programs. Numerous online applications can help telecommuters stay organized and connected to their teams, including tools for:

  • “Communication” – Skype, Google Docs, Google Talk, Jajah and Gizmo.
  • “Presentations” – GoToMeeting, LiveMeeting, webEx and BudgetConferencing.
  • “Project management” – TeamWork Live, Basecamp, ActiveCollab, CentralDesktop and QuickBase.
  • “Calendar” – 30 Boxes, Google Calendar and Yahoo Calendar.
“Telecommuters...need to be more concerned than their office counterparts with deadlines, work products and results.”

If the teleworker is your employee, not an independent contractor, your firm may choose to pay the equipment costs. Have the staffer sign a receipt acknowledging that the company owns the resources it purchased, and that they are reserved for work-related purposes only.

When establishing a remote workspace, keep employee safety in mind. In 1999, the U.S. Occupational Safety and Health Administration (OSHA) ruled that employers were responsible for their home-based workers’ safety. Though it retracted that advisory the next year due to a “firestorm of controversy,” avoiding worker injuries should be a priority. Today’s “home office is equivalent to the main office – at least for insurance purposes.” So if your people are injured while operating from their home offices, the claim will go to your company’s insurance. Still, teleworkers should buy insurance for accidents that may occur elsewhere on their property.

Employee or Independent Contractor?

Managers must properly classify the people who do telework for them, whether they are independent contractors or employees who use W-2 forms. This information affects your company’s taxes, so errors or misinformation can lead to penalties and other problems. In the U.S., an employee is someone “who performs services for you in which you control how and when” they are completed. On the other hand, an independent contractor is someone who “controls the means and methods” by which the work gets done. The concepts of “control and independence” are central to how the Internal Revenue Service (IRS) determines your staffers’ tax status. The IRS identifies three “categories of control”:

  1. “Behavioral control” – If you control “the details of a worker’s performance,” the worker is your employee, not an independent contractor.
  2. “Financial control” – With a few exceptions, if you pay the worker a regular salary and reimburse his or her business expenses, that person is your employee.
  3. “Type of relationship” – If you hire the worker for an indefinite period, he or she is an employee. If you hire the person for a set period of time or for a certain project, he or she is an independent contractor.
“Teleworkers need to understand that they must always be reachable during business hours.”

For regular employees as well as independent contractors, you must decide on a method of compensation. Paying consultants and creative workers – journalists, software designers, and so on – on a per-project basis is often cost-effective. For jobs with easily measured results, such as typing, an hourly wage may make sense. To decide compensation, consider the time the project will take and what it’s worth.

A Prescription for Productive Telework

Teleworkers must learn to treat their home office as they would the main office. They should get up according to schedule and maintain regular work hours. Dressing in business-casual attire may help get them in a professional frame of mind for work. Throughout their workdays, they should strive to achieve balance by taking breaks, stretching every hour, going to the gym, and so on. Prioritizing tasks may help them stay on track. A one-to-three rating scale works well. Do “1” tasks right away, “2” tasks if time permits and “3” tasks only if the others are done.

“Since they are not physically present, you need to establish regularly scheduled feedback sessions with your telecommuters.”

As a manager, watch for warning signs that telecommuters are working inefficiently, or not at all. Stay on top of their performance and productivity. Always focus on outcomes, not work procedures, since you have little or no control over the processes in a remote office you do not inhabit. Measure teleworkers’ output against the results of their on-site colleagues. From the start, be clear about “performance standards.” Spell out “what must be done, why it must be done, how well it must be done” and “by when,” as well as “what constitutes a job that is complete.”

“Properly implemented telecommuting programs can succeed. However, a number of factors come into play, including how well telecommuting meshes with corporate goals and whether or not it increases productivity and the bottom line.”

Emphasize quality, quantity, timeliness and cost-efficiency. Encourage teleworkers to keep errors to a minimum, maintain high productivity, make deadlines and meet their budgets. Set clear, challenging, results-oriented goals. Help them develop work schedules that will enable them to meet those objectives. Establish firm communication protocols regarding how, how often and when teleworkers need to check in with you. Provide regular feedback, so they stay on track with their targets.

Evaluating Results

To judge the success of your company’s telecommuting program, look at such factors as “reduced lateness, absenteeism and sick leave, increased job retention, and ability to attract the highest quality candidates.” Cost-benefit analyses will indicate if telecommuting is paying off for your company. Manager satisfaction is another good measure of the program’s success. Conversely, receiving numerous requests from teleworkers to resume their jobs at the main office would indicate that your telecommuting program is floundering.

“Allowing the program several months to settle and using fine-tuning procedures, as well as being flexible and responsive, can help smooth over bumps.”

Telework programs can provide major benefits for companies. Siemens, the German manufacturer, reported that telecommuting initiatives helped it reduce its office space requirements by 35%. Additionally, some workers became 20% more productive. Each year, the company saves $3 million thanks to telecommuting.

“No one knows what the future holds, but it looks to be bright for telecommuters and, by extension, their managers.”

As people and companies strive to “reduce their carbon footprint” and technology evolves, expect telework to become even more popular. Backup data centers will become increasingly important, as will “distributed wireless and satellite facilities.” Entire “telecities,” or virtual communities defined by telecommunications, may develop. In such a highly networked environment, telecommuters will thrive. Is it time for your company to prepare for this future?

About the Authors

Michael Amigoni has been managing telecommuters since 1977. He speaks routinely on this topic. Sandra Gurvis is the author of eleven books and hundreds of magazine articles.

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Managing the Telecommuting Employee

Book Managing the Telecommuting Employee

Set Goals, Monitor Progress, and Maximize Profit and Productivity

Adams Media ,
 


28 February 2026

The Public Domain

Recommendation

If the current regulatory mindset regarding intellectual property had existed when scientist Tim Berners-Lee developed the World Wide Web in 1989, the Internet might never have grown into the remarkable communication, entertainment and archival medium that it is today. Jazz and many other forms of music might never have come into being if governments were as strict decades ago about copyright law as they are now. Today, warns author James Boyle, huge swaths of the world’s artistic and cultural heritage – books, photographs, films, musical recordings – are locked up in governmental and private libraries and unavailable for distribution to the general public. Why? No one can identify the copyright holders or their heirs to obtain permission to copy them. The number of such “orphan works” is staggering: more than 95% of all books ever printed, and equally high percentages of film and music. Should the government wall off these potential treasures to protect the rights of nameless individuals, most of whom either don’t care or are dead? Boyle, an expert on intellectual property law, thinks not, and he explains why in this heated discussion about trends in his field. BooksInShort recommends his illuminating book to writers, inventors, and anyone else involved in the creation of content, as well as to managers and executives who wish both to protect proprietary information and to encourage innovation.

Take-Aways

  • Society’s view of intellectual property determines the progress of technology, science and culture.
  • Intellectual property protections can either spur or impede innovation.
  • U.S. President Thomas Jefferson believed that preserving freedom of expression was more important than protecting intellectual property.
  • Although it operates for the common good, the public domain has suffered repeated attacks over the centuries.
  • The Internet is the greatest medium for “nonproprietary, distributed creativity” in history.
  • Limits on intellectual property protection are as vital as rights.
  • Copyright protection is now so extensive that it limits cultural development.
  • Although intended to enhance progress, overly broad patents actually stifle it.
  • Policy makers should weigh the costs and benefits before they alter existing intellectual property protections.
  • Activists must engage the public in a discourse to challenge and change intellectual property laws.

Summary

Intellectual Property Law: A Runaway Train

Intellectual property law, which encompasses patents, copyrights and trademarks, has become much too broad. U.S. patents now exist to protect the peanut butter and jelly sandwich, as well as basic algorithms and human genes. Recently, the U.S. Digital Millennium Copyright Act (DMCA) erected additional barriers that will greatly restrict future creativity. The DMCA overturns fair use, a venerable common-law principle that, until now, wisely limited copyright. Indeed, intellectual property safeguards are going from bad to worse. If you can think it, you can patent or copyright it.

“The U.S. Olympic Committee has an expansive right akin to a trademark over the word ‘Olympic’ and will not permit gay activists to hold a ‘Gay Olympic Games’.”

Most people consider intellectual property to be an arcane discipline that is of significance only to lawyers. However, the way society conceives of intellectual property determines the pace of technological and creative development. Under the current overly protective mindset, the Internet would not exist; neither would jazz or other musical forms that depend on sampling or improvising on existing themes.

“Should the U.S. Commerce Department be able to patent the genes of a Guyami Indian woman who shows an unusual resistance to leukemia?”

Nevertheless, in recent years the legal trend has been to protect intellectual property of all kinds. This is destroying the “public domain” – those ideas and developments that are or should be collectively owned. Companies and content providers are erecting rigid and exclusive barriers around basic knowledge and ideas, the free “commons of the mind.” This is a recipe for creative disaster.

The Difference between Intellectual and Real Property

Real property is a “rivalrous good,” that is, something you cannot share. If you own your home, no one else can own it at the same time. No one else can claim to own the herringbone suit you just bought or that piece of lemon pie on your plate. That would be impractical, even ludicrous. You and the presumptuous stranger cannot wear the same handsome suit or eat the same slice of pie at the same time.

“Lawyers think about property differently from the way lay-people do; this is only one of the strange mental changes that law school brings.”

Intellectual property is “nonrivalrous.” The value of your software does not decrease because others use it at the same time; indeed, quite the opposite occurs. Nevertheless, like real property, intellectual property deserves legal protection. People should be able to benefit from their creations and inventions. Similarly, trademark law prevents unscrupulous companies from stealing and using the brands of established firms to fool the public. The absence of such intellectual property protection has the potential to diminish creativity. Indeed, without such safeguards, technological development as well as science and culture suffer.

“It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace.”

Therefore, the trend in recent years has been to make intellectual property law as robust and all-inclusive as possible. This has had disastrous unintended consequences regarding the pace of innovation, and cultural and artistic production. It has limited the availability of information and decreased business transparency. In fact, as they currently exist, patents and copyrights are forms of “perpetual corporate welfare” that inhibit rather than encourage inventors and artists. As a result, progress is suffering.

The “Jefferson Warning”

In 1813, Thomas Jefferson, the third U.S. president and an astounding polymath, wrote a letter, which people now know as the Jefferson Warning, to one Isaac McPherson about intellectual property. McPherson had asked Jefferson for his opinion concerning a patent for the design of a “series of buckets to move grain.” Jefferson told McPherson that the ancients had used a similar device called the “Persian wheel” to move water, and said that the device’s longstanding use called the patent’s legitimacy into question. He argued against the notion that inventors have a “natural and exclusive right to their inventions.” Jefferson feared that strict enforcement of such a right could inhibit creative activities and believed that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man.”

“Copyright, intended to be the servant of creativity [and] a means of promoting access to information, is becoming an obstacle to both.”

Jefferson did recognize the need for intellectual property laws. However, he did not consider intellectual property a “natural right” but rather a limited legal right that the state should carefully control and restrict. He said intellectual property differs from tangible property, such as land and possessions, in these three ways:

  1. It does not carry any entitlement or permanence.
  2. It poses “monopolistic dangers.”
  3. It should always be carefully assigned and delineated.

“The Second Enclosure Movement”

In recent years, lawmakers and regulators have been busy closing off every new idea, creation and development they can behind stout barricades of intellectual property law. This is hardly a new phenomenon. Indeed, the current “enclosure movement” follows an earlier one that took place from the sixteenth to the nineteenth century. During this period, kings, nobles and landowners conspired to appropriate what previously had been common land into their own vast, private estates, in what was essentially a “revolution of the rich against the poor.” They rationalized their seizure of common property by arguing that it increased the efficiency of land use. However, some scholars now contend that society did not gain in the bargain: The winners were the rich landowners, who became wealthier.

“Patents are increasingly stretched to cover ‘ideas’ that 20 years ago all scholars would have agreed were unpatentable.”

Society is now under attack by a second enclosure movement that would fence off “the intangible commons of the mind.” For example, many scientists and others believe that the human genome belongs to all of humanity – yet private companies have recently attempted to patent gene sequences. Similar legal incursions routinely occur in other areas of scientific and technical endeavor. The protection of intellectual property used to apply only to certain, exceptional cases; now it is the norm.

The “Internet Threat”

Content providers have created much negative publicity about what they perceive as the Internet threat. They claim that because users can easily copy creative materials from the Internet, this new medium must be rigidly circumscribed to safeguard intellectual property. They argue that surveillance, restrictions and penalties should characterize the Internet rather than the current freedom, openness and accessibility. They fail to acknowledge the huge economic benefits they receive from the vast new markets and distribution opportunities the Internet has opened up. For them, the “downside dominates the field, the upside is invisible.”

“In a networked society, copying is not only easy, it is a necessary part of transmission, storage, caching, and, some would claim, even reading.”

These and related attitudes prompted the ratification of the DMCA in 1998. Indisputably, the Internet and digital technology make copying protected material easy. So, the DMCA makes attempting to get around encryption and other electronic safeguards of this material illegal. Unfortunately, along with legitimate protections, the law overturns the fair-use standard that copyright law, until now, has recognized. As a result, lending music or copying even small sections of digital creations may become illegal in the future. Until recently, copyright law was a balancing act between providing rights (copyright protection) while imposing limits (fair use). But the DMCA is wildly distorted. It places all the weight on the side of rights while ignoring needed limitations. The imbalance endangers freedom of speech and expression.

What about Culture?

Copyright law should enhance the creative impulse, not restrict it. It rests on the assumption that artists will be more inclined to create new works if they can benefit materially, and tries to help them to do so. However, finding the right equilibrium between rights and limits can be difficult. Take music for example. This is a tough creative area for copyright law to enclose because it is additive; each artist builds on the works of those who came before.

“Intellectual property legislation had always been a cozy world in which the content, publishing and distribution industries were literally asked to draft the rules by which they would live.”

Consider “I Got a Woman,” the great rhythm-and-blues recording by Ray Charles, which he released in 1955, and which quickly made him a star. Charles used the melody of the gospel song “Jesus is All the World to Me,” by Will Lamartine Thompson, published in 1904. Fortunately for Charles, by 1955, Thompson’s copyright had expired. Since then, however, Congress has extended the length of copyright protection. If Charles had written “I Got a Woman” in the current era of super-robust intellectual property protection, he would have run afoul of the law. This is not an isolated example. Current laws severely restrain musicians and other artists from building on earlier works and musical traditions. Indeed, under today’s laws, such musical forms as jazz, soul, rock and rap would never have developed.

Examining the Evidence

Businesses and their advocates claim that, without robust intellectual property protection, individuals and companies have no incentive to develop new content. Why should a firm invest its valuable resources in innovation if someone else can then come along and make use of its creation without any of the prohibitive development costs? On the face of it, this argument makes sense. But does it stand up to actual experience?

“The variegated and evolving limitations on intellectual property are as important as the rights they constrain, curtail and define. The holes matter as much as the cheese.”

In 1991, the U.S. Supreme Court ruled that databases, the “unoriginal compilation of facts,” could not be copyrighted. However, at about the same time, Europe’s “Database Directive,” which said that databases were indeed subject to copyright protections, took effect. If the advocates for robust intellectual property protection were correct, database companies would not flourish in the U.S. but would in Europe. That’s not what happened. The U.S. database industry is now 25 times larger than it was in 1979. And while the European database industry grew immediately after the issuance of the Database Directive, it reverted to its normal size and pattern shortly thereafter. The evidence is clear: In the U.S., which has no intellectual property protection for databases, the database industry thrives, while in Europe, the industry received only a short-term, temporary boost from the directive. The “anticompetitive costs of database protection” are now a burden in Europe.

Fixing the Problem

Clearly, well-paid and highly effective advocates for broadening intellectual property rights are winning the battle. For half a century now, whenever the question comes up, lawmakers have always decided to expand such rights. Without public engagement, this trend is sure to continue. The problem is, intellectual property is not a subject that inspires. It seems nerdy, technocratic and abstruse. People don’t understand it, never mind get excited about it. Nevertheless, because of its immense implications for culture and technical progress, intellectual property is a subject everyone should think about carefully.

“Democratic decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, whether industrialists or content providers.”

In many ways, the advocates who worry that current intellectual property policy is harmful to cultural and technological progress are like 1950s environmentalists. In those days, environmentalists were lonely voices in the wilderness. However, look at all they have accomplished in half a century. Most people now understand that a healthy environment is everyone’s business, not just the idle concern of birdwatchers, park rangers and camping enthusiasts. Environmentalists convinced the public that it should strive for a cleaner planet. Like the environment, the public domain is eroding, and activists must engage the public in a debate on the new “politics of intellectual property.” The public domain is an invaluable human resource that businesses and their advocates are attempting to wall off, brick by brick. Everyone has far too much to lose to allow that to happen.

About the Author

James Boyle is the William Neal Reynolds Professor of Law at the Duke University School of Law. He serves on the board of Creative Commons, a nonprofit organization that enables people to share and build upon the work of others, consistent with the rules of copyright.

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