The economic structure of intellectual property law
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What Hacker News says
- You've given me the tech-exceptionalist party line circa 1999. I could've given you the same, way back then. Lessig. Drahos. Braithwaite. With more nuance, Boyle. Have you done any reading from the other side? I hadn't.
Valuable information that's easy to reproduce isn't a new phenomenon. See Who Owns the News?. Nor is it peculiar to digitally reproducible works today. See Rothman's The Right of Publicity. Both highly skeptical of many legal developments, but not doctrinaire or absolutist.
Digital technology didn't take the economic theory of property by surprise. See Information Rules, or even Landes and Posner's The Economic Structure of Intellectual Property Law. The latter goes light on software and the Internet, but covers all the same dimensions of marginal cost, prior work, and so on, in analysis of other domains. Cost savings with digital technology didn't break the theories or policy justifications. They just made analysis of certain combinations more valuable.
If I've guessed right, here comes the part where you lump me in with Disney, the Copyright Office, the IP Watchdog people, and other "IP maximalists". They lump me in with the pirates.
- The point wasn't to establish IP credibility, it was to establish myself as "not a shill for Microsoft." Every F100 company has done bad things with patents.
How's this: I've been a student of patent law since the late 90s. I've read "The Economic Structure of Intellectual Property Law" cover to cover. The patent system is a huge fucking mess and we need reform. I used to have pretty idealistic opinions about how to handle patent trolls until I started dealing with the ugly and expensive process of defending a suit. Until reform happens, businesses need to do what they can to survive. This helps.
- As Landes and Posner say in 'The economic structure of intellectual property law' (Conclusion, p422, s3) (2003):
"Economic analysis has come up short of providing either theoretical or empirical grounds for assessing the overall effect of intellectual property law on economic welfare."
And that is echoed in various other economic comment in later years. So there is an uncomfortable lack of research.
Now, the main purpose of copyright is to get the best trade-off in production level and access to goods. So given both that model and the lack of evidence, to say an increase in availability of goods, with a still strong level of production, is a good thing, seems very reasonable, does it not?
> losing 'potential income'
What does that even mean? Really, what? If people buy more coffee machines and make coffee at home, perhaps coffee-shop owners are going to say they are losing 'potential income'. Oh no! we had better ban the use of coffee-making machines!
The law is not there to ensure certain businesses make as much money as they think they should. (Well, sadly it currently is, but it ought not to be.)
- Your 'publication of ideas' argument applies only to things that can be hidden.
But the patent system applies to a super-set: things that are plain, too.
Therefore, by your own argument, the patent system is operating beyond its justification, and so could indeed be described as 'broken'.
In any case, the patent system is a trade-off -- of increasing production against restricting access (see: the standard economic model of it). If it is badly calibrated, the net effect is negative. And the current state of economic knowledge is that no-one knows whether it is set correctly (see: 'The economic structure of intellectual property law'; Landes, Posner; 2003. Conclusion, p422, s3.). When there is a whole big system, of various obvious costs, and you do not even know the net effect is positive, the sensible thing is to stop doing it (probably by phasing out), until something proves otherwise.
- While that is certainly a nice and well regarded model, it does not say much about what actually happens. It really only amounts to a proposition, and cannot be read as indicating a necessity. As Landes and Posner themselves later say:
"Economic analysis has come up short of providing either theoretical or empirical grounds for assessing the overall effect of intellectual property law on economic welfare."
-- 'The economic structure of intellectual property law'; Landes, Posner; 2003. Conclusion, p422, s3.
That is, to spell it out, we do not know if intellectual monopoly law is doing any good at all. This is easy to see for oneself: there must be, and obviously are, costs -- legal, enforcement, search engine 'fixing' -- yet we have no idea how much the gain is. If there is a negative, but the positive is unknown, it is quite possible the sum is itself negative.
- > but the truth of the matter is that without copyright laws, there would be a significant decline in the production of movies, music, games, and many other costly mediums
It might seem very intuitive to say such things, but it is not truth. The truth is that the economic evidence is just not there. What do Landes & Posner say?
"Economic analysis has come up short of providing either theoretical or empirical grounds for assessing the overall effect of intellectual property law on economic welfare." -- 'The economic structure of intellectual property law'; Landes, Posner; 2003. Conclusion, p422, s3.
That means we do not know whether it does good overall. Hard to quite believe? Well there it is.
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