Why does whether intellectual property is rivalrous matter? Very simply, because that question is often used as part of an end run around copyright (and other forms of intellectual property) by claiming that since intellectual property isn't rivalrous, it isn't property either1and, therefore, is merely a government-bestowed privilege that can (and should) be modified to meet the needs of those who do not have that right.2 In short, because it's not really property, it's really an exception to the public domain, which many of these advocates liken to the commons.
In turn, this invokes Garrett Hardin's famous essay on "the tragedy of the commons"a seminal work in ecology. The problem with this analogy is that Hardin's essay depends on the assumption that, as Mark Twain put it, "they aren't making any more" real propertylet alone commons. For Hardin's purpose, that is entirely accurate. For intellectual property, though, it is the exact converse: By its very nature, intellectual property is making more. It might not be making enough; it might not be making the right kind, whether that is measured by what people want or what is "good for them"; it might be making it at an inordinately high cost; it might be making it in improper competition with something else; but it is nonetheless constantly expanding. As Hardin remarks:
The National Parks present another instance of the working out of the tragedy of the commons. At present, they are open to all, without limit. The parks themselves are limited in extent there is only one Yosemite Valley whereas population seems to grow without limit. The values that visitors seek in the parks are steadily eroded. Plainly, we must soon cease to treat the parks as commons or they will be of no value to anyone.
Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244(1968).
Ironically, Hardin's essay concerns the "free rider" problem, and implicitly criticizes free riders as bad actors. That, however, is precisely what most advocates of "IP Commons"3 advocate: The ability to ride free on previous creations. So, if anything, the "tragedy of the commons" points the opposite way that IP Commons advocates would have it point.
An alternative to the commons need not be perfectly just to be preferable. With real estate and other material goods, the alternative we have chosen is the institution of private property coupled with legal inheritance. Is this system perfectly just? As a genetically trained biologist I deny that it is. It seems to me that, if there are to be differences in individual inheritance, legal possession should be perfectly correlated with biological inheritance-that those who are biologically more fit to be the custodians of property and power should legally inherit more. But genetic recombination continually makes a mockery of the doctrine of "like father, like son" implicit in our laws of legal inheritance. An idiot can inherit millions, and a trust fund can keep his estate intact. We must admit that our legal system of private property plus inheritance is unjust but we put up with it because we are not convinced, at the moment, that anyone has invented a better system. The alternative of the commons is too horrifying to contemplate. Injustice is preferable to total ruin.
Id. at 1246 (emphasis added). This is my principle objection to the IP Commons movement: That it has not actually put forth a better system than intellectual property. The alternatives that we've tried in the pastgovernment patronage, private patronage, religious imperative, and leisure productionhave already proven unsatisfactory. I grant there are problems with our IP systems, including agency capture. Without a workable alternative in sight, though, we're stuck tinkering with itnot rejecting it.
- The obvious refutation of this is bank accounts. I think there is little question that the money in my bank account is my property. However, in a system in which most money is nothing more than a bookkeeping convenience, it is also non-rivalrous. Further, whether something is "property" cannot logically depend upon where it is being stored (and in what manner) at a given moment. Place and manner of storage may implicate ownership, but can't change the underlying nature… unless one abandons the traditional economic theorem that capital changes form only through non-zero-valued labor.
- Don't get the idea that I think the copyright system is perfect. For example, I am somewhat frustrated by the inability under the Berne Convention (and 1976 [US] Copyright Act) to dedicate a work to the public domain. If that's what a given creator really wants to do, he or she should be able to do so. The problem, though, is that if he or she can do so, requirements to do so are going to start popping up in contracts. Thus, we'll end up with something like § 203 (and, for that matter, § 304(c)) of the Copyright Act. That is a most unsatisfactory solution.
- I do not intend this term to refer to any specific organization or "school" of the various movementswhich are about as unified as was the revolutionary movement in Russia in 1916 through 1920. And, for that matter, about as friendly to each other.