One of my favorite podcasts is David Levine’s Hearsay Culture, which I stumbled across this summer. I noticed recently that back in March he did a podcast with Richard Epstein, a giant of classical liberal legal thought, back in March, so I’ve been listening to that episode.
Epstein has long been one of my favorite libertarian thinkers. On most subjects, I find myself nodding along in agreement. But when he gets to the application of patent and copyright law to the technology industry he has a tendency to go off the rails pretty quickly. This is apparent in his Hearsay Culture interview as well. For example, about 25 minutes into the interview, he talks about the problem of patent thickets in the tech industry thus:
The question is, how do we know when there’s a blockade? Well, a lot of it depends on the topology of the landscape if you’re looking at physical resources, and the same thing will happen with respect to intellectual property. So just to take the general question, let’s start with a background on the tech side before we get to the documentary film. Do we think that the addition of any new patent in any particular area is going to increase or reduce the blockade effect of other patents? And the answer to that question is frankly my dear we don’t know in the abstract but the betting would be that the more patents you have, the fewer the blockades. Now why is that? If you imagine these things as being in an array. Suppose you have to go through six steps in order to get a process, and at every one of these steps you’ve got four alternatives. Well if that’s what’s happening, you’ve got a lot of choices at each stage and you’ll be able to bargain one off against another and presumably find a path through this thicket. Somebody comes up with a new invention, now instead of having four alternatives at the first stage you may have five. Or you’ll get a new invention which means that you don’t have to bargain with anybody at stages 6 or 7. And if that guy comes in with a blockbuster patent, he will not be able to charge more than the old 6 and 7 combination could have been able to do, and if he’s really good somebody else is going to come into that same field because the patent doesn’t give you a monopoly over the functionality as such, only the device or the invention that allows you to actualize that functionality. I mean, that’s not 100% correct, but it’s 95% correct for these particular points. Samuel Morse could patent the telegraph, he could not get control over all uses of the electromagnetic spectrum. So new inventions in the tech area generallly seems to me to expand possibilities by giving you alternative stepping stones through the thicket.