Intellectual Monopoly?

The first panel of yesterday’s Cato conference focused on Against Intellectual Monopoly, a treatise against patent and copyright law. One of the authors, David LeVine, faced off against James DeLong of the Progress and Freedom Foundation, with Cato’s Jim Harper providing some theoretical background at the outset.

I wanted to be convinced by Mr. LeVine’s argument. The world would be a much simpler place if we could just forget about all this intellectual property stuff. IP litigation consumes a lot of resources and the IP system is prone to rent-seeking legislation like the DMCA. Unfortunately, he just didn’t make a very convincing case. He did point out certain classes of content that could be produced for free; open source software is an obvious example. But it’s hardly groundbreaking to point out that some creative works could be produced without the IP system. The central question is whether, on the margin, intellectual property increases or decreases incentives for the production of creative works.

I just didn’t think LeVine did a very good job of engaging on this question. As DeLong pointed out, there are some classes of creative works, such as big-budget Hollywood movies and pharmaceuticals, which it seems exceedingly unlikely would be produced without an intellectual property system. When asked about the King Kong example, LeVine seemed to me to dodge the question, giving examples that really aren’t analogous.

Moreover, LeVine seemed not to grasp the point that copyright and copyleft products can perfectly well co-exist side-by-side. Bad legislation like the DMCA aside, there’s no reason a well-designed copyright system should in any way impede the creation and distribution of non-commercial creative works. True, I can’t take the source code to Microsoft Windows as the basis for my next open source operating system, but in an non-IP world Microsoft Windows likely wouldn’t exist, so that doesn’t seem like a great loss.

If non-commercial, decentralized production methods really are superior, they should be able to prove their worth without changes to the copyright system. So I’m perfectly willing to take a wait-and-see attitude. If, 20 years from now, we’re all running Linux, going to movies produced by volunteers in their free time, and taking drugs produced at low cost by Universities, then we can by all means abolish intellectual property then. But right now, intellectual property seems to be doing a pretty good job of stimulating the production of creative works, and I’m not inclined to upset the apple cart without a good reason.

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