from the fairness-and-liability dept
Earlier this year, I
recommended the book
No Law by David L. Lange & H. Jefferson Powell. I still keep meaning to get around to writing a full review, but the book makes a very compelling argument that copyright law is a clear violation of First Amendment principles. However, rather than wiping out copyright law, the book suggests something of an alternative. In noting that the claim of "exclusive rights" has been bastardized from the original "exclusive rights to profits," they suggest that no one be barred from using the content of others, with the requirement that profits due to those uses must then be shared with the originator. I have some issues with that conclusion, but it looks like others are investigating that concept as well.
Andrew F alerts us to the latest work by Marshall van Alstyne, who we've mentioned before concerning his views on
journalism business models and who did a great job at
The Free Summit put on by Tech Policy Central, and emceed by me. His most recent paper, co-authored with Gavin Clarkson, explores both how strict intellectual property rights
lead to socially inefficient outcomes, and how "fairness" principles could be much more efficient. The paper uses a combination of real world examples, previous research and game theory to make a rather compelling case.
Basically, it explains all the reasons why intellectual property leads to hoarding of information that slows innovation:
Property rights provide incentives to create information but they also provide incentives to hoard it prior to the award of protection. All-or-nothing rights, in
particular, limit prior sharing. An unintended consequence is to slow, not has-
ten, forward progress when innovation hinges on combining disparately owned
private ideas.
As to why this happens, it's due to the injunctive ability of intellectual property holders to not just stop the specific use of their expression or invention, but effectively everything else built on top of it:
Infringement of copyright provides injunctive relief as remedy. This permits copyright
owners the use of take-it-or-leave-it offers as strategy. The trouble that results from such
a hold-up strategy is that it allows the injunctive rights owner, when bargaining with a
non-owner, to extract nearly the full value of any transaction (with full information it is
full value.) For recombinant works, this affords the last negotiating rights holder undue
influence much as the last negotiating landowner exercises undue bargaining power relative
to other landowners in any effort to develop a multi-parcel tract of indistinguishable parcels
of land. For works of modest value, such as a single sample of a song, image, or video,
negotiation costs can vastly exceed market value. For transformative works, insignificant
inclusions of lesser material can retard or reduce the progress of more valuable material as
when the release of the movie 12 Monkeys was enjoined due to the appearance in several
scenes of a copyrighted chair.
From there, they make the case models that follow on "fairness" and "liability" work much better than a strict "property rights" setup. Along the way, they discuss the
study we mentioned in the past about how people view fairness and relative compensation, as well as debunk the myth that if one person can take advantage of another they absolutely will.
The end result is a suggestion not unlike the one in
No Law: that rather than setting up a system of artificial property-like rights called copyright and patents, there may be more social
and economic efficiency in allowing unfettered usage of expression and inventions, with a system that then requires some sort of attribution and payment for a fair share of any of the profits. That would then actually encourage much greater sharing of ideas and inventions in an effort to get those concepts included more widely.
It's definitely interesting to think about, and I agree that in many ways it would likely lead to great net benefit than an IP regime, but it could also generate many other problems, especially in situations of independent generation or incidental copying -- as well as long, and drawn out legal fights over these situations as well as a determination of what is, in fact, fair. The paper does try to address the latter point with three responses, but I'm sure this won't be enough for some.
Either way, this is certainly an interesting paper that contributes to this ongoing discussion.
Filed Under: copyright, fairness, no law, patents
