Very good piece on the main site from Sheldon Richman on our absurdly over-extended patent and copyright system.
Intellectual property is fundamentally different from physical property because physical property is by its nature scarce, while intellectual property by its nature can be shared without any user suffering a loss. (If I lend you a songbook, which is physical, I can’t read it while you have it; if you simply take it, I’ve suffered a loss. If I sing a song to you, and you learn it, I have not thereby lost everything – if you sing it, that doesn’t prevent me from singing it at the same time or any other time I like.) Laws regarding physical property are designed to deal with a real situation of scarcity; laws regarding intellectual property are government-granted monopolies designed to create scarcity where none exists.
Richman makes this point to get the ideological/moral case for strong IP out of the way, and then attacks the utilitarian case for the patent and copyright system – that it encourages innovation – from multiple directions. I won’t summarize here; read the whole thing.
I will add only three points:
First, Richman only mentions this in passing, but one of the real problems with strong IP is that it creates powerful incumbents who use politics to further increase the value of their monopolies by stifling innovation. It does not promote innovation in any way to have Disney’s copyrights perpetually extended; it just increases the value of Disney’s copyrights, and therefore of Disney stock. Relatedly, and this is an important thing for ideological free-traders to remember, much of what constitutes America’s trade agenda these days is the government promoting the interests of some of America’s strongest industries – software, pharmaceuticals, entertainment – by getting other countries to agree to America’s strong IP regime. If a strong IP regime is actually better understood as a grant of monopoly market power, and on-net a barrier to freedom and innovation, then our “free trade” agenda is substantially the opposite of what it claims to be.
Second, and this may undercut somewhat Richman’s initial intellectual case, it’s important to recognize that rights to property as such are also grants of monopoly power – that “rights” don’t exist outside of a state with a monopoly of violence to protect them. Locke’s ideological justification for property rights lies entirely in the fact that the application of labor increases the value of a piece of property; when I till the land, I make it fruitful, and that application of labor is the rationale for my “right” to the land, and the product thereof. He doesn’t stop there, of course, but he does start there. So there is a reason why people think intellectual property should be treated the same as physical property, and it lies in that same understanding that physical and intellectual property are property in the first place because they are the product of labor. That having been said, what this should make us realize is that rights to physical property ultimately also depend on a utilitarian justification – we need them to make society work. By the same token, if private property rights were not protected by the government – as they are not in places where public order has substantially broken down – people turn to private defense of what they assert is their own: private guards, even private armies. (This is how feudalism got its start in Europe after the fall of Rome.) Private security is very expensive relative to public order, which is why most people prefer to live in societies where public order is well-maintained. Extending this line of thinking back to intellectual property means that, if we hypothesize the rollback of a good portion of our current IP protections in law, we have to account for the dead loss incurred as incumbents with a large investment in intellectual property use private methods to protect their property from being “stolen.” To a considerable extent, of course, they do this already; would it get worse in a weak-IP world? Or better? That’s a question I’d ask Mr. Richman.
Finally, per the title of this post, it’s worth remembering that we get most of our information from people who work in the media, which is an industry with a vested interest in a strong-IP regime. That conflict is not generally recognize in any explicit way when the subject comes up. Whether reporters and other media professionals are right that, in the long run, their interests are served by a strong IP regime is a legitimate question, but I think it’s safe to say that the widespread working assumption is that at least in the short term their interests are so served, and I think this affects the way discussions of these matters frequently get presented.