Patri Friedman has an interesting argument against “intellectual property”:
An argument by Milton Friedman about “consensual crimes”, however, pushes me more in the anti-IP camp. Libertarians, of course, decry such “crimes” for moral reasons, but his argument manages to be both consequentalist and general. He points out that consensual crimes have a naturally higher enforcement cost and worse effect on civil liberties.
The reason is that for a normal crime, such as theft, there is someone actively trying to stop the crime, and with the interest to report it and help solve it. For a crime such as prostitution, neither the buyer nor the seller are being harmed. Hence neither will report it, and neither will help solve it. On the contrary, both have an interest in hiding it. So to catch someone at such a crime, you need to spy, to mole, to entrap – because the participants aren’t going to help.
Regardless of your moral beliefs, anyone with a practical bent understands that enforcing laws has costs, and those costs must be measured against the benefits of stopping the bad activity. This argument adds some consequentalist punch to libertarian morality by suggesting that the class of activities we think should be legal (consensual ones) will naturally be more expensive to ban than the class we think should be illegal (nonconsensual ones). In the specific case of IP, the copier/user and the copied are engaging in consensual activities – as with prostitution, it is only some distant authority who wishes this activity to stop.
There’s clearly something to this. The recording industry’s war on file sharing does have some similarities to the war on drugs. But even if we were to conclude that it was hopeless and ought to be abandoned (which I’m not willing to do), I think the implications would be less sweeping that Friedman suggests.
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One of the most important lessons of politics in recent years is that language matters. The words we use to describe the policies we advocate have a profound effect on how we think about them. Our choice of language has powerful effects in framing how we think about a subject. Sometimes, this effect can be benign or even beneficial. As a libertarian, I like the political implications of the terms “death tax” and “undocumented worker.” I’m not so crazy about the terms “gun control” and “war on terrorism.”
I’ve become convinced that the phrase “intellectual property” is a particularly potent bit of framing. And, in my opinion, it has become a serious obstacle to thinking clearly about the legal regimes of copyrights, patents, trademarks, and trade secrets. There are often debates, on TLF and elsewhere, that are framed in terms of whether we should be “for” or “against” intellectual property. This, it seems to me, completely obscures the real issues in the “intellectual property” debate. No one (even Levine and Boldrin) is in favor of abolishing the trademark system. Likewise, no one is in favor of extending “intellectual property” into every conceivable area of our lives (consider David Friedman’s silly proposal to give people ownership of words). Everyone believes that “intellectual property” is appropriate for some areas of the economy, and inappropriate in others.
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Reader X. Trapnel appears to have a newly created blog, and he has a provocative and well-argued post arguing that copyright and patent are examples of Bastiat’s broken window fallacy. I made a much more limited version of this argument back in May, where I pointed out that it was a mistake to measure the worth of peer-produced projects like Wikipedia by the revenues they generate. But X. Trapnel goes much further and argues that the entire argument for patent and copyright law are examples of the fallacy:
Just as in the Bastiat story, you have the helpful onlooker who says “But everyone must live, and what would become of innovation if every innovator could have his insight copied by the first free-rider who came along?” Just as in the Bastiat story, this is wrong. What is seen is the way in which the protected firm uses his IPR to generate monopoly profits, some of which are then plowed back into R&D, generating a pleasant stream of innovation. What is not seen is what would happen in the absence of this protection: the innovator would have to keep innovating in order to maintain his market, leveraging his expertise into further productive developments, while newcomers would be able to experiment on their own with the knowledge produced by the first. Money that once went to monopoly rents would go instead to other, more productive things–including further innovation.
The neo-Schumpeterian retort is that this is hopelessly naive: innovation requires large capital investment and the reasonable hope of monopoly rents to recoup it. But this is mere question-begging, and its plausibility lies, again, with the distinction between What Is Seen and What Is Not Seen: when we give innovators monopoly privileges of this sort, we thereby tilt the playing field dramatically towards heavily capitalized firms by jacking up the costs of the inputs (eg., prior innovations, a skilled legal team, insurance against lawsuits) to production. As a result, What Is Seen is capital-intensive innovation; What Is Not Seen is the less capital-intensive innovation that the legal regime has stamped out.
As I’ll explain below the fold, I think this argument has a certain plausibility (especially for patent law), but ultimately I don’t find it persuasive.
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Tim, Steve and others go after me below in an interesting exchange on compatibility and standards. I thought I’d start a new post on this to highlight this exchange and let people really sink their fangs into me since I’m taking the provocative position (at least for this board) that everyone is blowing these compatibility and DRM issues a bit out of proportion. Specifically, in my response to Tim’s “DRM Train Wreck” post below, in which he bemoaned the lack of file compatibility in the digital music world, I argued:
“Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console. Would we be better off if perfect compatibility existed among all the games and consoles? Would 3 major gaming platforms exist at all if we could simply play all game titles on just one of those boxes? I doubt it. I think it would be more likely that only one console would prevail and the other two would disappear. And I think that would leave us worse off as a result.
Same goes for music players, in my opinion. I fully know that I can’t play all my WMA files on an Apple Ipod. But that keeps me (and millions of others) buying non-Apple players. As a result, there’s a fairly diverse and growing market of Apple competitors. Would all those competitors be viable if we could all just play our digital music on an Ipod? Again, I wonder.”
Tim responded that he “[didn’t] understand why incompatibility would cause more competition.” And Steve, one of our most frequent and thoughtful commentators here on the TLF, responded that I am “overlooking a critical point concerning incompatibility” regarding “unintentional” vs. “intentional” variations thereof.
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Best Buy has forced BlackFriday to take down information about its upcoming sale prices. I agree with Matt:
This is absurd. We’re inching toward companies being able to prevent newspapers from publishing any sort of adverse information just all on vague copyright grounds. Facts are facts and people are entitled to circulate them.
Best Buy (ab)used the DMCA’s notice-and-takedown provisions to force the prices off the web. Alas, this is not the first time this sort of thing has happened. Four retailers pulled the same stunt back in 2002.
This is a serious problem with copyright law that doesn’t have a clear solution that I can see. It’s fairly common for a big company to send cease and desist letters to small companies or individuals alleging copyright infringement. Much of the time, the law is on the side of the little guy, but even hiring a lawyer to make the appropriate argument in court is far more expensive than complying with the letter’s demands. A good first step, though, would be to scale back the draconian statutory damages that now apply to copyright infringement. It might also be good to either have an expedited process to get frivolous copyright lawsuits dismissed or some kind of loser-pays provision for frivolous copyright lawsuits.
Although some people blame this sort of thing on the DMCA, it’s not clear to me that the DMCA is the culprit. The ultimate problem is the underlying copyright liability, which would exist with or without the DMCA’s notice-and-takedown provisions.
There is an absolutely intriguing discussion going on over on the Second Life blog today about a new threat facing this popular virtual reality world. (If you are not familiar with Second Life, see this Wired magazine “travel guide” for this virtual world.)
It seems that Second Life users are growing increasingly concerned about the spread of a program or bot called “CopyBot,” which allows the instantaneous and perfect reproduction of virtual objects / property created inside of Second Life. As Daniel Terdiman points out over on CNet News.com today: “That includes goods such as clothing that people purchase for their in-world avatars, and even the virtual PCs that computer giant Dell announced Tuesday it is going to sell in the digital world.”
The folks at Linden Labs, creators of Second Life, posted a note about all this entitled, “Copyrights and Content Creation in Second Life.” It does a lousy job of trying to explain how copyright law works in the real world but suggests that Second Lifers who feel they have been wronged might want to look into how the DMCA could help them out. The post goes on to note that:
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I’ve been neglecting my blogging over the past week since my free time has been occupied with setting up my latest high-tech toy–Sony’s “Location Free TV.” To keep pace with the increasingly popular Slingbox, which also allows consumers to space- or place-shift their TV and other video signals, Sony has just released a new box (the LP-20) that retails for $250 bucks and has more features than their first generation Location Free boxes. As I was setting it up and troubleshooting various connection problems (and I had quite a few), I kept wondering about whether or not this new Sony device would raise any copyright issues.
Like the Sling, Sony’s Location Free box allows you to watch your home TV signals on your personal computer anywhere you want via an Internet connection. An added bonus with the Sony box is the ability to also watch TV remotely on your PlayStation Portable (PSP) gaming device. It’s a very cool feature but my experience with it so far has been a mixed bag. The PSP suffers from more latency issues (probably due to its more limited wireless networking capabilities) and picture quality really becomes unbearable at times as a result.
But watching TV remotely on my laptop looks pretty good and the desktop software that Sony provides makes it very easy to program in my cable set-top box codes and special buttons (like the button I use to call up my PVR archive so I can watch recorded TV shows while I’m on the road). And I can also use the Location Free box to control another video source, such as my DVD player. So, when I’m stuck in an airport trying to keep my kids from melting down, I can remotely access an animated movie sitting in my DVD tray back home. Very, very cool.
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WIlliam Patry writes today about what the election could mean for copyright. Bottom line, either Howard Berman or Rick Boucher will take over the IP subcommittee in the House, and Patry thinks there’s a good chance it will be Boucher. Boucher is no friend of the DMCA and seems to understand fair use.
Mr. Boucher is viewed by content owners as generally less sympathetic to their interests, although I would phrase the matter quite differently. Mr. Berman will always play an important role in the House on IP matters even if he is not chair of the subcommittee. In the past, he has taken great interest in international issues, and that may be the way he goes. The idea that he would pass on a different chairmanship solely at the urging of content owners is an idea that doesn’t reflect Mr. Berman’s overall interests or his role as a member of Congress. This isn’t to say he won’t take the IP subcommittee, it is only to say that I doubt the matter is as settled as some think.
Last week I wrote about how excited I was to learn that Microsoft would soon be announcing an eagerly awaited movie / video downloading service for its XBOX 360 gaming console. And now we have the details of their new business model. And, in my opinion, it looks like a winner for MS, content developers and consumers alike.
Beginning on November 22nd–the second anniversery of the XBOX 360 launch–XBOX users will be able to use their “Microsoft Points,” which can be earned or purchased on the XBOX Marketplace, to download movies and TV shows from affiliated partners. The first round of deals MS cut were with CBS, MTV Networks, Paramount Pictures, Turner Broadcasting System Inc., Ultimate Fighting Championship (UFC), and Warner Bros. Home Entertainment.
More deals are sure to follow, but that’s quite a bit of content already. I look forward to downloading Comedy Central and VH1 shows in particular, in addition to all the movies they’ll be offering. And my kids will love all the Nickelodeon and Nicktoons stuff that is on there. (A list of all the content companies involved in the deal can be found here).
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To make it a copyright trifecta today, here’s an interesting story about ambiguity in how copyright applies to RSS feeds. Does merely offering an RSS feed imply that anyone can take the feed and repurpose it on another site? Many “splogs” (spam blogs) aggregate unsuspecting RSS feeds to attract keyword-driven traffic and thus make money with Adsense.
EFF’s Fred Won Lohman says, “Frankly, until there is some case law on this or related issues, we simply can’t be sure of the answers to these questions.” IP prof Eric Goldman says “In my mind, there’s no question that a blogger grants an implied license to the content in an RSS feed. However, because it’s implied, I’m just not sure of the license terms.”
I’m not sure how an RSS feed is different from any other content on the web. Unless text on a site makes it clear that a feed is available to be used any way you’d like, why would should we presume that the owner is giving up any rights? Sure, RSS is XML, which makes it easy for others to repurpose your content, and presumably you wouldn’t be publishing easy-to-repurpose XML unless you intended others to do that. However, the most prevalent consumer application of RSS are newsreaders, so I think it’s much more reasonable to assume that personal news aggregation sites publish RSS. As far as copyright is concerned, I don’t see how this kind of use is any different than browsing content on the web.
Some sites, like the New York Times, offer RSS feeds with special instructions about using them on your own site. As long as that’s not the case, the usual web norms (increasingly accepted by courts) should apply: copying even large chunks of content with attribution is fair use (a la Google News or Eyebeam’s reBlog), taking entire sites wholesale is not.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.