David R. Henderson  

Jeff Tucker on Intellectual Property

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Might it be that some of the users' shared content on Megaupload was copyright protected? Absolutely. It is nearly impossible not to violate the law, as shown by SOPA sponsor Lamar Smith's own campaign website, which used an unattributed background image in technical violation of the law. The leading opponent of piracy might himself be a pirate!
This is from Jeffrey Tucker, "Power vs. People in the Digital Age."

I have not read every in and out on the debate on intellectual property but bit by bit I'm coming closer to the idea that there shouldn't be any or that, at least, there should be much less protection of it than there is now. One thing that informs my view is what I learned from Sam Peltzman in my Industrial Organization class at UCLA in the early 1970s. When we got to patents, I thought we would hear the standard case for monopoly as a spur to innovation. Sam did present that case but he also put on the syllabus two articles by Arnold Plant from the 1930s that expressed skepticism about IP: one was on patents and one was on copyrights.

My Encyclopedia (first and second editions) covers both. For a full-throated defense of IP, see Stan Liebowitz, "Intellectual Property." In the earlier edition, I wrote the article on patents and pointed out the difficulty that Arnold Plant had noted. See David R. Henderson, "Patents."


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COMMENTS (11 to date)
Dave writes:

If you care about good movies, books, or music you will favor copyright protection. Patents are another story.

Ed writes:

For David, I recommend this read:

http://mises.org/books/against.pdf

Bill writes:

Salman Khan (Khan Academy) demonstrates the urgency for paying attention to the details of the proposed legislation

http://www.lewrockwell.com/blog/lewrw/archives/103965.html

Pandaemoni writes:

So, if after all your hard work, I put out my own editions of "Making Great Decisions in Business and Life" and "The Joy of Freedom" under my own name, giving you no credit and paying you nothing, you'd be okay with that?

It seems to me that there needs to be some way for a person to gain from his or her own unique intellectual efforts, and ascribing a property interest to the product of the effort is as easy a way as I can imagine. It may be that modern technology is making that solution impractical, but I can easily imagine a fall off in the number and quality of books published each year if there is no way to establish an economic interest in the work. Perhaps I'm wrong in that.

Joseph K writes:

If you care about good movies, books, or music you will oppose copyright protection. The issue is really what level of copyright protection will maximize creativity. Since copyright both stimulates and stifles creativity (and generally more of the latter), then the maximizing point is certainly going to be minimal, if not zero. The question is whether creators can make good money in the absence of copyright protection. If you answer 'no' then you really haven't thought how creative creators are and haven't really embraced the fact that our current copyright protection, though strong, is filled with holes

Tracy W writes:

When I was taught about IP at uni, I was taught that the original justification was an incentive to reveal how it worked. Without patents people relied on secrecy and passing techniques from father-to-son, which limits geographic spread and loses the innovation entirely if the father and son are both killed by the plague.

After government takes over provision of some service within a generation or two most people living under that government have forgotten that it was ever possible to attain the service through private, voluntary arrangements. This is the case with IP law, or so it seems to me. Most participants in the debate seem to assume that there will be no protection at all for intellectual property if government does not contrive protection. But if government withdrew from the field then the field would be open to free entrepreneurship. What would evolve is impossible to predict. I wrote more on this once for an audience assumed to be libertarian http://freenation.org/a/f32h3.html.

Julien Couvreur writes:

Thanks for the reference to Liebowitz.

By presenting the problem as a trade-off between production and consumption, controlled by a parameter (how strong is the monopoly privilege), the natural reaction is to assume an optimal point somewhere in the middle (as opposed to zero privilege). That is not actually an argument, but rather taking advantage of the readers' bias.

Second, the author acknowledges many government limitations, yet somehow presumes government could set a level of protection anywhere close to the "optimal". There you will notice he makes competing claims (government is to set a single universal rule, vs. each product deserves different levels of protection).

Third, the author cannot tell the difference between a voluntary market (that appears naturally in a cooperative society) and a government-created "market". He says, once government creates the IP market by setting the rules, the market can find some good configuration. And, he claims, that is better than having government taking over completely (taxing consumers, rewarding producers).
That is a beautiful strawman.
To recap, start with a supposed problem based on some nirvana model (perfect price discrimination), invite government intervention and justify it by criticizing a worse government intervention.

Finally, by excluding morals from the discussion, the trade-off appears neutral. But a similar trade-off certainly exists between women and rapists (ie. what is the optimal amount of rape in society). Protection from rape brings good to some, less protection brings good to some others, therefore government should decide some optimal level of protection. That is nonsense. When you recognize the moral implication, and recognize that IP privileges violate individuals' basic property rights, the discussion of trade-off becomes visibly absurd.

Pandaemoni writes:

Tracy W makes a good point. In the U.S. you never have to file for patent protection. You can rely on common law "trade secret" rights to protect your interests in something you've developed. If you file for a patent, though you have to disclose the details of the invention, so the information becomes public, but your interest in it protected for a time.

Lars P writes:
So, if after all your hard work, I put out my own editions of "Making Great Decisions in Business and Life" and "The Joy of Freedom" under my own name, giving you no credit and paying you nothing, you'd be okay with that?

This would be weird more than anything. Who would buy the copy book rather than the original one? The more realistic case is that someone releases the books as free files on the net.

A more interesting case is if I think I could improve on "The Joy of Freedom", by tightening up the writing, fixing some errors and adding a chapter. That would actually have some value, and is of course completely illegal toda. You must write your book from scratch.

Moving down on the plagiarism spectrum, the world clearly wants more Harry Potter books and movies, but it is illegal to make any, even if you do write the whole thing yourself, since the characters are Intellectual Property.

And there is of course "mashups", which would be a huge part of modern culture, if it was more legal. Listen to this if you enjoy musical creativity that has no rights:
http://www.bootiemashup.com/bestofbootie2011/

Ken B writes:

I think there is a useful distinction between copy right [not a typo] and property right in the subject. If Rowling cannot control the right to copy her string of words then her ability to earn from Harry Potter is hugely reduced. This is not true of vetoing my use of Hagrid in a novel. I can only seriously impact her HP sales if I make a better competing book -- and in that case by hypothesis creation has been served. Copy is production is sales, and needs some protection; wider ownership in the ideas is different.

As for patents you clearly need something like patents for drug development. Less clear you need it in software. [Full disclosure: significant other works for a pharma related company.]

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