Thank you, James Madison

Our son has difficulty reading. Two years ago, my wife found out about NIMAC, a national center for distributing textbooks in electronic form to print-challenged students (the blind, dyslexics, etc.). NIMAC was created as a result of IDEA 2004, to facilitate student access to texts. Two years later, we're still trying to get access, even though our son's eligibility for the materials has never been questioned.

The story is a common one to anyone who has ever tried to navigate an unfamiliar bureaucracy: many paths followed to dead-ends, months spent getting a particular authorization only to find that it was the wrong one, months wasted getting authorizations from uncooperative or semi-cooperative third-parties that turned out to be irrelevant, etc.

The particulars of the story aren't that important, but as the process dragged on, it became clear that the process was designed more to deny access than to facilitate it. The rules are arcane, the documentation hurdles substantial. Even when a student gets access to materials, downloads require the active participation of a public official (at least that's how it appears to us now; we think we're close, but we haven't yet been successful).

"Why," we asked ourselves, "would you create a program to help students, then make it so difficult to use that it would deny services for years?" Why even bother?

It turns out we can thank James Madison and the other authors of our Constitution. The Constitution doesn't merely tell the government to promote invention and creation. It prescribes how to do so:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

IDEA required publishers to provide their texts in electronic form, free of charge, but such a requirement creates constitutional problems. In the words of a friend of ours, 'If the government mandates “free” anything, the courts won’t uphold it without a showing of significant need and also a significant administrative check on unauthorized access.' In order to comply with the Constitution, the government has to make access difficult.

It's only two years. And counting. Thanks, Mr. Madison.

Update: I misunderstood the point my friend was making and then misinterpreted what I read. The Congress isn't required to give exclusivity, but apparently courts have interpreted such a grant as the creation of property, after which an act which reduces it is a "taking." The government might be able to limit the original exclusivity, but it's easier to make access to federal funds contingent on providing access, then making barriers to access so high that almost no one can qualify, and those that do, don't do so quickly.