15 July 2003

Professor Solum has responded to my comments of 10 July criticizing some of the basis for his position. His responses indicate that we have both genuine disagreements and failures to communicate. Rather than nitpick excessively (which I would ordinarily be perfectly happy to do as either an academic or a practitioner), I'm going to try to rectify the most serious communication problems.

Professor Solum believes that "Petit is actually arguing that only those who have an economic stake in IP protection can see the consequences of weakening IP protection." I don't think that's what I was saying. What I was trying to say is that those who do not have a critical stake in IP protection tend to inordinately discount the personal stakes of those who do. Professor Solum's citation of Professor Lessig's books is not persuasive. Admittedly, Professor Lessig has made quite a bit of money from his books, and deserves to; there is much of value in them. However, the books are not how he makes his living; his role as a professor is how he makes his living. Further, the vast majority of professors who have written books—even oft-adopted textbooks—do not earn enough from that activity to say that writing books is how they "make their living." My point, which obviously was not clear enough, is that IP protection is the mechanism that has been chosen to ensure the basic economic support of artists (in the broad sense) and inventors, and that those who most frequently advocate against strong IP protection do so without sharing or understanding—or all too often acknowledging—that there are two sides to the issue, and that strong IP protection for individual creators has some substantially different economic interests and effects than does strong IP protection for corporate owners of IP.

Look, for example, at the prevalence of various common types of internet piracy and how the "justifications" for that piracy relate to the ownership of the property. Although the attention on Kelly v. Arriba Soft might increase and admittedly acts as a partial counterpoint, virtually all of the attention paid to "piracy" concerns material that is primarily or exclusively owned by parties other than the actual creator of the work. Film copyrights are owned by the producer, and often transferred to the distributor. Music performance copyrights are owned by the recording company (distinct from the songwriter's copyright). On the other hand, until the last four or five months there has been virtually no public acknowledgement of the problems with piracy of written material on the Internet—and I can download the complete works of Joanne Rowling from any of a dozen places in less time than I can download an MP3 of a single song off of "Weird Al" Yankovic's latest album. There are technological reasons for this, of course; I suggest that the economic interests also distort the discussion.

Professor Solum also states that "Petit believes the opposite. He argues that self-interest reduces bias and a lack of interest increases bias." I still don't see this in what I wrote. I intended to indicate that self-interest (or its absence) creates a kind of bias that can inhibit communication and understanding. One of the other comments Professor Solum made implicitly acknowledges this: he noted that some academics make substantial money from their IP, but still consider the term too long. (As an aside, I agreed then and agree now that the term is too long; I disagree that the particular alternative proposed—five or ten years—is any better.) This feeds back into the difference between someone who makes a profit and someone who makes a living from IP, which was my point.

As far as the whole argument over "rent-seeking" goes, I think we had a case of two ships passing in the night, which was at least half my fault for not being clear. Let me try again.

The only way in this context to equate "rent-seeking" with "bad" is to treat intellectual property as somehow inherently "inferior" in the right to seek rents to personal or real property. Professor Solum quite properly points out that the act of making a copy does not directly create exclusion. The difficulty here is that there are two types of property at issue every time a copy is made: the physical copy itself, and the content of the copy. Making a copy does not physically (in most cases; consider a sculpture made of rare or unique materials) inhibit the making of another physical copy, true enough. However, that copy in some sense alters the value of the intellectual property. In some contexts, the greater number of copies may increase the value of the property; a single copy of a particular musical performance, for example, has less value to the creator of the musical performance than do fifty copies that allow others to share in the performance and compensate the creator for it. However, this does not justify rent-seeking in physical property in the abstract while denigrating it in intellectual property in the abstract.

Professor Solum concludes that "Because very long terms and retroactive term extensions create wealth transfers but do not create a corresponding social benefit, they are 'rent seeking pure and simple.' Perpetual property rights in physical resources do have wealth effects, but they create enormous social benefits." Of course, the premise cuts both ways. If one accepts the constitutional premise that an economic interest in intellectual property will function to increase the amount and availability of intellectual property for other uses—for some people, this is a big "if"!—there is a "corresponding social benefit" to intellectual property terms. The question is one of balancing the terms with the costs and benefits. The argument that one extreme's on-balance harms necessarily means that the other extreme is the correct position is the problem with the entire copyright-term debate. The mainstream approach is to reduce the current excessive term of 120 years to a vastly shorter term, such as Professor Solum's proposal of five to ten years. (That this latter proposal may itself seek a rent is a complex, and far from intuitive, proposition that requires further study.)

The main point of my commentary is that the proponents of eviscerating intellectual property rights, whether by abolition of copyright or some other means, seldom consider the effects of those changes upon the individual creators of the property. The cause is twofold. I explicitly noted that the effects of those changes are on the whole outside the experiential framework of the IP critics and thus are far too easily discounted. I implied, and should have made clearer, that the identity of the holder of the IP rights is a major factor in this argument that does not and should not be allowed to overwhelm the consideration of the actual creator's rights. The well-taken objections to the abuses committed by Disney in defense of Mickey Mouse (when, correspondingly, Disney does not respect the IP rights of others, even when those rights—e.g., Peter Pan—have been unreasonably extended to truly seek a rent) at best imply that similar objections must be considered on the facts for abuses by individual creators in order to determine whether individual creators' rights need to be reined in for the same reasons and in the same fashion.

A much simpler and less-disruptive means of dealing with the entire issue would be reform of the various definitions of "author" under the Copyright Act. This would allow US law to maintain harmony of term with the international consensus without simultaneously ratifying the abuses perpetrated by many "authors" who did not actually create the work, but only invested in it. Although there are a lot of details, I believe that most or all of this nonsense would slowly slide off into the mist if (among other things) the work for hire doctrine were to be limited to employees only. There would still be abuses, true; and this would also require a corresponding change in the termination (revocation) rights under § 203, by shortening the horizon; but I suspect that economic forces would be more capable of dealing with those abuses.