16 September 2003

Yet More Law & Economics Even Still

Things are really getting out of hand with the L&E analyses of intellectual property. Professor Volokh and Professor Solum have continued their disagreement on end-user reproducibility/rivalrousness. This is turning out to be an argument over how many lawyers can dance on the text of an authority (such as the Intellectual Property Clause); nobody is addressing the "vacuum problem":

If not intellectual property, what?

This kind of dispute all too often devolves to a cousin of the straw-man fallacy. Those who do not wish to treat "intellectual property" as property seldom offer an alternative rationale for understanding and dealing with "intellectual property." Discounting the status quo's rationale does not discount the need for a rationale. The real world is not a null hypothesis that can be negated as a theoretical matter without any influence on the world itself. Consider for a moment the commonly offered alternatives offered to a property-based system of intellectual property. They all have significant, and perhaps overwhelming, disadvantages that are less prominent in the property-based system.

  • Idea creation limited to an avocation by noneconomic means has an obvious problem: it does not maximize the output of ideas because it requires the "best" idea-producers to engage in other activities to meet basic (and even non-basic) needs. It has the further difficulty of skewing idea production toward any leisure class, which reduces total utility by reducing diversity (in either the economic or natural-selection sense). Historically, the closest analog to which I can point is eighteenth-century France. While I do not claim that this by itself caused the French Revolution, the relative absence of competition for aristocrat-driven ideas was a factor.
  • Absolute free exchange of ideas is not a realistic alternative. This is, in effect, a price-control theory. It assumes that sufficient ideas will be created and disseminated to maximize social utility when the price is set to zero. Starving artists starve; I assume the same happens to starving inventors who are not busy inventing means of feeding themselves at no cost. Some intellectual property will continue to be created, but maximizing social utility is not a realistic possibility unless one believes that all worthwhile intellectual property has already been created.
  • Free exchange of ideas supported by patronage has its own problems. This has two variations: patronage of the work and patronage of the individual. The former is merely a different payor in a property-based intellectual property system; the property at issue is the income stream that is tied to a given work, because it still requires proper credit for the production of a given work. Patronage of the individual has serious problems with suppressing dissent, whether that is dissent from a theocratic patron, a bureaucratic or government patron, or a plutocratic patron. Eighteenth-century France could, I suppose, instead be treated under this theory; the result is the same.
  • Free exchange of ideas with no economic support presupposes that nobody needs to do much of anything to avoid starving. To say the least, the real world does not support this assumption! For a badly written example extolling such a utopian ideal, look at Edward Bellamy's Looking Backward, and think carefully through the gaping logical flaws, most of which stem from the assumption that all right-thinking people would agree with Bellamy's value system, and that completely discounting non-right-thinkers is both possible and acceptable.

Under both my personal value system and the value system implicit in the Intellectual Property Clause, the relative disadvantages of each of these alternatives to treating intellectual property as property greatly outweigh the relative advantages. In any event, nature and politics abhor a vacuum; something will rush in to fill the void created by removal of intellectual property from the realm of "property," and it is other than wise to pretend otherwise.

I challenge critics of the basic concept of intellectual property as property to present a rational alternative that is not clearly inferior. I am listening, and willing to be convinced; there is something disquieting about setting prices in this context.