I’ve been thinking about the best way to respond to the news of Jim DeLong’s apparent semi-retirement from the public policy world. For the last decade, DeLong has been the most prolific, and perhaps the most influential, libertarian thinker on patent and copyright issues. He has probably done more than any other person in the libertarian think tank world to promote the view that patents and copyrights are no different than any other kind of property right, and that libertarians should therefore almost always come down in favor of broadening the scope and duration of copyright and patent rights, for stiffening the penalties for violating these laws, and for enacting new regulations of third parties to make it easier for copyright holders to enforce their rights.
I’ve criticized DeLong’swritings repeatedly on this blog, so I won’t re-hash those arguments. But I am disappointed that (with one exception I can recall) DeLong never engaged any of my criticisms. Perhaps he was offended by the derisive tone some of my posts took. Maybe my work just never made it onto his radar screen. In any event, I think it’s sad that a significant opportunity for substantive engagement on these issues was missed. DeLong often seemed to be arguing with caricatures of his ideological opponents, ignoring the more nuanced substantive work he could have found if he’d looked for it. I was particularly disappointed that he never took the time to offer a substantive critique of my DMCA paper, one work of mine that I know he did read. I doubt he would have been able to change my mind (or vice versa), but I bet I would have learned a few things from his criticisms.
One place I do have to give DeLong credit is his amicus brief (with TLF contributor Solveig Singleton) in the Teleflex case. This was probably the most important patent case in the last quarter-century, and in my view he came down on the right side of it, recognizing that the patent system becomes an obstacle to progress if patents are granted too liberally.