When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.
Last night when I finally finished filling out my NCAA basketball tournament brackets (I have Michigan defeating Memphis in the title game), it occurred to me (it was late!) that the way I think about the basketball tournament -- my love of the underdog and my selective memory -- is similar to the way a lot of us view tech policymaking. And that's a bad thing. We tend to cast tech policy matters in terms of win-lose affairs, deluding ourselves into thinking that they will be close, hard-fought close contests. Emotionally, it is satisfying to entertain the idea that the underdog will win. Marketers vs. Privacy Advocates. "Innovators" vs. Telco Operators. IP Owners vs. Fair Use Advocates. But these are never close contests. The same teams always win. What a facile way to look at law.
In sports, as in much of life, we love to root for the underdog. Hoosiers, Rudy, Rocky. It's all the same. Somebody we can identify with lands the big punch, makes a long run, hits the last-second shot and in the process pulls off an improbable yet emotionally satisfying victory.
This is a psychological booby trap that can kill you at tournament time. And in handicapping politics.
That's why they call it March Madness. Delusion is a form of madness. Very few of us possess the hard data necessary to pluck out the best teams among this year's 64 entrants. We have only our emotions. When it comes to filling out our tournament brackets, the exploits of underdogs past loom large in our memories. We remember the underdogs, not the winners.
Not many people remember who won last year's tournament. But everybody remembers Davidson's Stephen Curry draining threes against Gonzaga, Georgetown, and Wisconsin, en route to a two-point loss to Kansas in the Midwest Regional Final.
In 2006, the role of Cinderella was played by George Mason, a small school just south of Washington, D.C., which made it to the Final Four that year, stunning college basketball bluebloods Michigan State, North Carolina, and Connecticut along the way.
Cherished memories of the underdog's rare victory obscures the fact that, in nearly every contest, the favorite wins. David's late, lucky shot against trash-talking Goliath has totally overshadowed the fact that the Philistines dominated the Jews for a generation before that.
The favorite always wins. Three-quarters of the time, anyhow. Perhaps you'll recognize this list of recent tournament winners: Kansas (2008), Florida (2007), Florida (2006), North Carolina (2005), Connecticut (2004), Syracuse (2003), Maryland (2002), Duke (2001), Michigan State (2000), Connecticut (1999), and Kentucky (1998). Not an underdog in the bunch.
Just for facile fun, I've made up a list of the 16 teams I'd put in a hypothetical Tech Policy Bracket. And I've ranked them -- "seeding" in tourney jargon -- according to who has the better record and best prospects for success this year. This list isn't about who I want to win but who has actually been winning these games. All games will be played in Washington, of course.
(1) AT&T. Perennial top seed. Plodding, methodical team. Likes to Big Foot opponents, offense consists mostly of dunks.
(2) IP Owners. Recruits some of the best talent in the country, players have a reputation for flopping. Always pleading with the NCAA for rule changes.
(3) Business Lobbyists. Persistent, in-your-face defensive specialists. Along with AT&T and IP Owners, among the largest donors to the Referee Retention and Retirement Fund. Tends to get the close calls.
(4) Google. Literally came out of nowhere, boasts a "Beat us if you can" attitude. Relationship with referees will be key.
(5) Amazon. Like Google, made it to the Big Dance on hustle alone. Will shoot from anywhere on the court.
(6) Online Marketers. Rarely defeated, they still play with a chip on their shoulder. They love to run up the score on inferior opponents.
(7) White House. Story here is Barack Obama. Lit it up last fall, untested on the big stage.
(8) Apple. Flashy, high-scoring, can beat you with hardware or software. Rabid fans.
(9) Free Software. Fundamentally sound. International fan base. Plays to sellout crowds, possibly due to free ticket promotions.
(10) Bloggers. Reputation for trash-talking and making long shots, players frequently play in their pajamas.
(11) Federal Trade Commission. Fundamentally sound with lots of offensive firepower, but very rarely uses it.
(12) State Legislatures. Historically a powerhouse, lately has fallen on hard times. Resourcefulness is going to be key to victory.
(13) Newspapers. Coping with deteriorating training facilities and loss of alumni support, this year's team is wearing uniforms purchased in 1989.
(14) ICANN. Getting it done with smoke and mirrors, this team often plays abroad. Spends a lot of time on public relations.
(15) Internet User Advocates. Talented but underfunded, the players on this team have not yet learned to play together.
(16) Internet. A hardy opponent, often taken for granted.
(Going to the NIT this year: Microsoft, Yahoo!, Dell, Research in Motion)
Looking to the first round games, I see AT&T (1) easily getting past Internet (16) with a combination of throttling, traffic management, and content deals. The Apple (8) - Free Software (9) matchup is too close to call, I could go either way on it, but I would love to see Apple meet AT&T in the second round. Amazon (5) is going to have a lot of trouble with State Legislatures (12), and I don't see them being able to turn back State Legislatures' need for tax revenues, especially in these tough economic times. Google (4) has been killing Newspapers (13) for years now; that should continue in this game.
The Online Marketers (6) matchup against Federal Trade Commission (11) is game you'd think would be a close one. But historically Online Marketers have won every time. I see them getting through to the next round in easy fashion. It's also a safe bet that Business Lobbyists (3) will crush ICANN (14) in what I see as a low-scoring, defensive battle. I'll be very surprised if ICANN gets makes any of its new gTLD shots.
White House (7) versus Bloggers (10). It's a shame they had to meet in the first round, since Bloggers were so instrumental in Obama's win last fall. I'm going to give this one to White House. Having the Commander in Chief on your team has got to count for something.
The final first round game, IP Owners (2) vs. Internet User Advocates (15), is shaping up to be another walkover. Internet User Advocates didn't score a single point in the Copyright Term Extension Game and scored just a handful of points in the Digital Millennium Copyright Game. No matter how much publicity is given to this game, the fact is that if it wasn't constitutionally required IP Owners and Internet User Advocates wouldn't even be on the same court together.
My Final Four is AT&T, Google, Business Lobbyists, and IP Owners. After that, I don't see Google getting past AT&T. Maybe next year. In the other semi, IP Owners' greater experience and depth, combined with an overwhelming need to win, should get them through to the final. An AT&T-IP Owner final is really too close to call. I've been hearing for years that, if they had the opportunity, they'd cut a deal and share the title. Not this year. My pick: AT&T.
Go Blue.
Follow me on Twitter at @bnatechlaw
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