I take it you grant that the reason for laws protecting creators’ rights in intellectual property is to get IP created in the first place.

This was part of my point where I said that IP laws prevent conflict in the context of abundance. IP is so abundant that you can’t effectively fence it once it’s created. Your choices in the absence of statutory protection are a) not creating, b) not distributing, or c) spending all your days trying to enforce your rights. IP law fixes it so that intellectual goods are created, shared, and used.

What, though, is the rationale for extending those rights beyond what gives people the incentive to create? (Greater reward seems implicit in your market pricing argument. Am I wrong?)

Abundance becomes a feature rather than a bug once a creator has enjoyed recompense for the item created. At that point, everyone should be able to use and reuse the item of intellectual property, speeding the – well, “progress of science and useful arts.”

Your defense of market pricing begs the key question, which is what the creator’s rights are in the first place – what the creator can bring to the market and for how long. If you extend IP rights infinitely and very broadly, the market pays very well. If you limit them sharply the market doesn’t pay well at all.

The “limited times” restriction in the Constitution seems clearly to suggest that there is a balance to be struck by public policy, not a marketplace measure. Public policy should be informed by economic study rather than rent-seeking, which I suspect underlies most recent extensions and expansions of intellectual property rights.

If the Framers had intended the subjective or marginal theories of value to determine what creators should be paid, they wouldn’t have included the “limited times” language. Indeed, there wouldn’t have been a copyright/patent clause. IP would have been assumed one of the natural property rights protected in the 5th and (later) 14th Amendments.

Re comments: IPcentralits prefer to respond to other blogs because they tend to be more substantive than comments, and less given to name-calling. We also accept comments by email, and with permission repost thoughtful ones on IPcentral.

The conflict between physical rights and IP has been often noted, but is, I think, overly simplistic. Contract rights and physical rights also conflict. So do easements. There are benefits in keeping physical rights absolutely simple and pure; but in a world where capital and value is increasingly intellectual in nature, there are also benefits in setting out some ground rules regarding trades, etc.

It is very difficult to make an interesting case either for or against IP if one assumes that physical property is absolute. Assume Principle A is inviolable. Principle B conflicts. Principle B must be bad. There is no substance here! If, on the other hand, one starts with an actual argument about why physical property is important (as Richard Epstein has done), then it gets interesting and much more difficult. The two are not identical, but they are sufficiently similar to merit some head-scratching.

If I own a music CD and the government decides to grant the music copyright holder a propping-up-the-table right, the value of my physical property has decreased because I can no longer use it to prop up the table without first buying a license.

Every single intellectual property right has this effect of decreasing the value of physical property. That’s the main reason I think we need to be very careful to grant the correct amount of rights to owners of intellectual property.

If I own a music CD and the government decides to grant the music copyright holder a propping-up-the-table right, the value of my physical property has decreased because I can no longer use it to prop up the table without first buying a license.

Every single intellectual property right has this effect of decreasing the value of physical property. That’s the main reason I think we need to be very careful to grant the correct amount of rights to owners of intellectual property.

The only problem is that DeLong’s Shopping Cart posts at IPCentral don’t deserve the ink, nor the traffic you are sending his way. Seriously, I’m beginning to wonder if DeLong isn’t a closet information anarchists and is putting up extremely weak strawmen just to prove how easy it is to swat them down and to demonstrate how fallible the “created works are equivalent to tangible property” stance really is.

BTW, they don’t have a comment area over there at IPCentral exactly because they want other blogs to link to them instead of responding directly.