Articles by Jim Harper 
Jim is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. Prior to becoming a policy analyst, Jim served as counsel to committees in both the House and Senate.
Jim DeLong has responded to comments on his shopping cart analogy – the idea that copying intellectual property is like taking a shopping cart – by pointing out that the marginal cost of producing a shopping cart is very low, just like the marginal cost of producing intellectual goods. His conclusion: the distinction between physical goods and intellectual goods is “one of degree, and often a slight one.”
Jim has not identified who has missed his point, and IPCentral doesn’t publish comments, so I’m going to assume that he’s responding to the posts and comments here on TLF.
The distinction I made between intellectual and physical goods in my long and windy post comes at a more basic level. I explored why property rights originate in the first place. In tangible goods, property rights exist to prevent conflict in the context of scarcity. In intellectual goods, property rights exist to prevent conflict in the context of abundance.
And we should be entirely clear that intellectual goods are abundant. Your computer has copied this post so that you could read it. Doing so has rendered no one less able to do so. Loading it from servers I theoretically pay for cost me a wee bit, but if you were to cut and paste this text, you could reproduce it at zero cost to its original producer/owner. Try doing that with a shopping cart! There is a difference between “tending toward zero” and “zero” – a difference of kind, not degree.
It could be that Jim D. is wedding intellectual and tangible property through a new theory: property rights arise as a natural consequence of things being produced from other things at marginal cost. This mixes the roots of property rights in natural justice with the economics of production, and I think it’s unworkable, but if that’s a theory he wants to defend . . . .
More likely, Jim is appealing to the unfairness of expensive pieces of intellectual property being stolen. I agree that violating copyrights is wrong, but I’m not sure that the marginal theory of value applies well in the intellectual property environment. Indeed, the copyright/patent clause in the constitution seems to call mostly for application of the labor theory of value. We should reward creators in amounts that promote the progress of science and useful arts.
Finding the level of reward that does this is difficult, but abandoning the task and adopting the marginal theory of value would probably reduce welfare compared to a regime that judiciously rewards creativity. It is my opinion that allowing the “Rambo” franchise to transfer more than a billion dollars from consumers to producers was wrong when consumers could have gotten the same value, and possibly much more, at half the price.
As I write this, it’s 9:33 a.m. Eastern. I bet Tim Lee will have a post up about this (and/or this) by 9:54 a.m.
Some recent posts on the always interesting IPCentral ‘blog prompt me to invite some more careful discussion about the similarities and differences between intellectual property and tangible property. I think such discussion might help illuminate the apparent disagreement among libertarians posting their comments here on TLF and on IP Central.
I’m more of a tech-head libertarian activist than a theoretician or even a constitutional scholar any more, so I’m probably going to expose myself to a lot of criticism thrashing around in philosophy and theory as I’m about to do, but who cares! If it helps get people to talk more carefully about their differences on IP, it’ll all be worth it.
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National Journal’s Drew Clark is looking at the recent spate of Google issues through a different lens. Many folks have suggested that Google is being inconsistent by defending liberty in the U.S. (resisting the Justice Department’s subpoena) while caving to China (installing filters as required by the government there). That’s an oversimplification in many respects and the case that Google is being inconsistent is harder to make than that.
If you want consistency, Clark’s piece shows where it is: The governments of both China and the United States are seeking to censor.
Clark goes into the fundamental problem that makes the subpoena of Google by the Justice Department so concerning: Supreme Court case law holds that people don’t have a reasonable expectation of privacy (for Fourth Amendment purposes) in information about them held by third parties. This notion is flat-out wrong. It is falling further and further out of step with reality with the advance of online life.
Law enforcement has put a lot of investment into this backward state of affairs, though. A constitutional sea-change will have to take place before people can be confident of going online without exposing themselves to the government’s prying eyes.
Cato Unbound is the Cato Institute’s new quasi-blog Web magazine. Their recently released January issue is right up TLF’s alley. The topic this month is “Internet Liberation: Alive or Dead?” It leads off with a “step-outside-the-box-burn-the-box-grow-tea-with-the-ashes-and-read-the-tea-leaves” big-think essay by virtual reality pioneer Jaron Lanier. Today, they posted a crisp litany of criticisms from open source guru Eric Raymond. Replies from Glenn Reynolds, John Perry Barlow, and David Gelernter will roll out over the next week. Recommended reading!
For those who think that consumers will be powerless in the face of the “worldwide RFID infrastructure” ™, I submit: DCist.
Wait. Isn’t DCist that local newsy ‘blog with plenty o’ nightlife information for D.C.-area residents? How could such an airy, lightweight site have anything to do with the privacy onslaught posed by RFID?
RFID is a highly technical challenge that furrows the brows of smart and serious technology analysts and privacy activists. It takes privacy expertise, public policymaking experience, and tech savvy to handle RFID. These things are in short supply among the – sorry to say it – great unwashed . . .
Balderdash.
DCist has posted a brief, entertaining recipe for hacking your Metro SmartTrip card. For entertainment, people are learning about technology. My favorite comment so far: “Big next winter: Smart trip mittens.”
Here’s the significance: Ordinary people are getting access to relevant information about where RFID is and how it works. Ordinary people are fully capable of understanding RFID. Ordinary people will use it to their advantage when they want and decline to use it when they want.
The premise of experts (a premise that serves the expert class quite well) is that people can’t figure this stuff out so they have to be protected from it by law and regulation, after thousands of hearings, meetings, forums, and conferences.
Repeat: balderdash.
This is evidence of what I wrote about some time ago: a variety of social forces will constrain and contain RFID.
The Business Software Alliance is touting a study reporting that: “Cutting the global piracy rate of 35 percent by 10 percentage points over four years could generate 2.4 million new jobs, $400 billion in economic growth and $67 billion in tax revenues worldwide.”
Tax revenue, huh? Sounds like a wonderful public-private partnership brewing. (Yes, sarcasm.)
What’s interesting about it is the interpretation or lack of interpretation being given the study in various quarters.
TechDirt, where I read about it first, provides a lot of interpretation:
Every so often the Business Software Alliance comes out with a press release, based on a study they paid IDC to do, where they misrepresent the issue of illegal software copying. They make huge claims that anyone with half a brain can see is incorrect. . . . The BSA pretends that every copy of software would have been bought if the copy wasn’t available. That seems to be their basis for saying it would help stimulate economies. They say things like: “Some companies know they are losing 40 percent of their business. If they could recoup that, they could employ more people.” Indeed, any company would like to sell more product–but many of the people copying software could never afford it, and never would buy it–so it’s pretty difficult to say they’re really “losses.” At the same time, the BSA seems to completely discount the other side of the equation. That is, companies who are illegally copying software are saving money that they can then invest in hiring more people. Also having the software often makes companies more productive, thereby helping the economy.
Over on another favorite resource, IP Central, the recounting of the BSA report entertains no such skepticism. Indeed, the conclusion is treated as obvious: more law enforcement. PFF was equally uncritical of the previous report, which TechDirt, a sensible market-oriented site, lambasted.
PFF is a good group of friends, old and new. They had a nice holiday reception last night and I took the opportunity to encourage a few of said friends to read TLF and, specifically, to engage with Tim Lee because he has a lot to say. (I ought to hurry and publish this post because he probably will have something to say about the BSA report before me if I don’t.)
Copyright is not only about income for content producers, but also overall welfare. More nuance in our thinking about copyright seems warranted and a more careful discussion of the issues among us free-market-types is needed.
Jeers to the Cellular Telecommunications & Internet Association for volunteering its membership’s data collections for the growing corporate-government surveillance axis.
In an exchange of comments to the FCC about whether there should be mandated security requirements for Customer Proprietary Network Information (aka “phone records”), the Electronic Privacy Information Center has argued for “deidentifying” older phone records that are no longer needed for billing and related purposes. This way, the companies can use the data to study their network needs without maintaining an ongoing risk to the privacy interests of customers. Whether this should be required by regulation or not – I think it probably shouldn’t – this practice is the right thing to do.
CTIA responds, “Historical calling records serve many legitimate purposes, from assisting customers who need to validate their wireless charges and document past events to responding to legal process from law enforcement in criminal and national security matters.” In other words, after all billing issues are gone, identified calling records are a trove of surveillance data for investigators. So let us keep them.
The implicit appeal to the threat of terrorism should not carry the day over the real consequences for every American consumers’ privacy. But regulators won’t put consumers’ interests ahead of covering their own asses. Watch for CTIA’s veiled terrorism argument to win. EPIC has the right answer, but it should be working this angle in the marketplace rather than in Washington.
This week, I’m debating some folks on data security regulation at CNET News. com. Could be interesting and informative.
So far, the debate has transmogrified, at the hand of News.com’s editors, from data security regulation into “IDENTITY CRISIS” and my first post was provocatively (mis-)named “Why should people trust the industry?” – a question that I think is off-point and needlessly loaded. An inauspicious start but, still, check it out.
Highlight: California State Senator Joe Simitian calls regulating a “duty.”
Ever wonder why the ‘bloggers on Tech Liberation Front feel the way they do? This might give you some idea.
Things are getting better all the time and technology is integral to making that true. So, while we often rant here about the dumb people doing dumb things to hinder progress, let’s take a moment to savor how technology is making life better in every respect.
. . .
There. That was nice.
[HT: Instapundit]
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.