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I would sincerely appreciate your feedback on this analogy I'm developing.
I’m working on a project looking at libertarian views on copyright (more on that soon), and I’d like to solicit your feedback on an analogy I’m developing. I’ve set up a comment thread at Google+ and....
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Mike Linksvayer's profile photoVictor Ghidu's profile photoRyan Radia's profile photoJason Walker's profile photo
23 comments
 
Well, you've stipulated away a major argument against your position, saying: "(To be clear, the government is not recognizing an existing property right, it is granting a privilege. ...)" The argument on the other side takes as a premise that one has a property right (of some scope and duration) in one's intellectual creations and inventions. Address this premise as carefully as you have the administration of intellectual property laws, and you'll have a breakthrough!
 
While I agree with you, your argument stands on copyright not being property.  Some of my libertarian friends hold that government must protect property rights, and copyright is 'Intellectual Property."  Offloading that argument to links elsewhere won't persuade them.  This concept is very ingrained into them "If I create something, how is that not my property?"  Other than that I like the analogy.  
 
John and Jim, thanks! As I suspected the main concern that I am assuming that copyright is not property. That's something I intend to argue in another part of the paper I'm writing preceding this analogy. Assuming I make that case, though, does the analogy stand? Also, I guess it surprising to me that so many folks see copyright more like property and less like a monopoly privilege.
 
Jerry as you'd expect I find this analogy illuminating. In particular, I think a lot of libertarians who take the copyright-as-property metaphor literally fail to appreciate just how much discretion Congress has in defining both the scope of copyright protection and how many taxpayer dollars are going to be spent enforcing it. Even if a Lockean account of copyright were philosophically sound, it's hard to see how it tells us anything useful about issues like optimal copyright terms, third-party liability, criminal vs. civil liability, DNS blocking, anti-circumvention rules, and so forth. I'm not a Lockean so this is easy for me to say, but I think that a view of copyright as a benign (at least in small doses) form of industrial policy is more philosophically defensible.
 
From a Hayekian perspective forms of trademark and copyright emerge spontaneously in systems of common law. Redistribution of subsidies doesn't. Now you can argue that we've moved away from common law and that it's wrong for Congress to call the shots. But that's an argument against Congress, not against copyright.
 
Pietro: It's not an argument against copyright in general but it is an argument against anything like the copyright system we've got today. Congress has repeatedly amended copyright law since 1976 to make it ever more favorable to copyright holders. And it has created doctrines like the AHRA's DRM mandate, the DMCA's anti-circumvention rule, and the PRO-IP Act's asset forfeiture rules that are hard to imagine emerging from a common-law process.
 
Ok I agree with that. But then a simple public choice argument could easily win over a lot of libertarians.
 
I think your analogy is correct. I don't understand how libertarians view IP as anything other than a government-granted monopoly. Someone, say, writes a song, sings it to me, the song comes to live in my brain, the writer continues to possess it as fully as ever, yet the government restricts (with enforcement) what I may do with this information. I'm interested in seeing how the thread develops. I would like to understand this better.
 
I agree that there's an externality, I'm not sure anybody can price that a priori though. 10$/gal? Where does that come from? Also I could also ask "as compared to what?". It's conceivable that any alternative way to fuel transportation right now would lead to even bigger externalities. But we probably should stop debating this, because it's off topic. I don't want to hijack the thread.
 
This is a really interesting analogy and it works in a lot of the ways you describe, and I second Timothy's comments above that an inherent right to intellectual property is defensible only on utilitarian grounds. The institutional problems are exactly as you describe; a tendency towards more rigid copyright terms, industry favoritism, etc. 

However, it seems like the case for IPis stronger (and concurrently, the risk of rent-seeking much greater) for things like pharmaceutical innovation, rather than things like music where the knowledge problem issues are totally obvious. If you've been following the debate over data protection terms for biologic drugs in the Trans-Pacific Pact, you can see the detrimental effects unconsidered reductions in protection terms (even just symbolic ones, as in President Obama's proposed budget) can have on the ability for third-world consumers to have access to medicine.

Biologic drugs are an especially interesting case because that's where much of the innovation in modern medicine is right now and will be in the future. We're getting close to the point of exhausting all the medically useful combinations of molecules, and innovation will be slower there from now on. So now patents on traditional drugs function as a sort of protectionism by preventing generic drug manufacturers from competing with the patent-holders (until they all fall off the patent cliff in the next couple of years). For biologics, however, there is still much unexplored territory. Beyond that, these drugs are much more costly to make, and difficult to protect with ordinary patents. It's easy to tack on an extra protein or something to the protected design and thereby make an equally efficacious product that isn't covered by a traditional patent, which has necessitated these new things called data protection terms. Is there a case for IP in some places but not in others?

It's high time conservatives and libertarians started talking about these things!
 
I agree with the comparison, but to push back for the sake of argument:

Copyright can be seen as a replacement for contract where negotiating and enforcing contracts would be prohibitively expensive.  If transaction and enforcement costs were zero, artists and consumers would enter into contracts that allow only certain uses of the creative work.  The contract could be enforced under the common law, and the result would look a lot like what copyright is supposed to look like.  Because transaction and enforcement costs are so high relative to the value of the limited use of the creative work, though, these value-producing contracts will never be entered into.  Copyright law essentially creates a uniform contract and enforces it against all consumers of creative works, thereby allowing market transactions that are only prevented by transaction costs.

It's not clear that a similar argument can be made for Solyndra subsidies.  The value of alternative energy technology is likely great, and if it is viable in the near future it should be quite large relative to the transaction costs.  Private parties can enter contracts that exchange upfront costs for future revenues, and resources can be allocated to the development of technology subject to market forces.  If future profits are small or far in the future, and transaction costs are high, the contract argument could work, but it is somewhat more awkward.
 
Jerry,

I like the piece, and it's well argued. Without looking at all the comments above (I need to rush home), I will make my comments here:

I think you leave two crucial things unaddressed:

1) I'm not convinced by Webb's argument that copyright is different in kind from property rights. And in your piece, it's flatly asserted, which is too bad, because that leaves a potential gaping hole in your argument.

2) Shouldn't you address the question of positive externalities? Presumably that was the thinking behind creating copyright in the first place.

But again, good argument, and I'm almost convinced.

-Tim
 
Seems like the definition of a priori estimate. You can't run the experiment.
 
Sorry, I wasn't using the words 'a priori' in the sense of 'a priori knowledge', but more simply in the usual sense of 'beforehand', as opposed to 'a posteriori'. Basically my claim is that 10$/gal is not a price that emerges from the supply and demand back-and-forth, but it's something that is computed, estimated etc...if you don't want to use the word 'a priori' that's fine, how about 'on paper'? Again, this are extremely hard estimates to make and I'm not sure they take into account opportunity costs. For instance, just recently I read somewhere that the high cost of gas in Europe has led to a higher use of coal, which is notoriously worse for the environment. I'm sure such collateral effects don't get envisioned when estimating the cost of a high gas tax.
 
Jerry, I agree with others' critiques that the distinction between copyright and property may be unavailing, but for a different reason: non-copyright property rights can themselves be conceptualized, like copyright, as nothing more than government privileges or subsidies (your terminology) to efficiently exploit land, chattels, etc. The Constitution may give the U.S. government comparatively more flexibility to determine the scope of copyright privileges and subsidies than of other types of "property" (i.e., the takings clause vs. the progress clause) but the distinction is one of degree, not kind, IMO. In particular, neither copyright nor any other type of "property" is particularly enforceable without government involvement, except to the extent you're willing to exercise force yourself. (And again, the difference in the ability to self-enforce copyright versus other property rights is one of degree, not kind.) 

To put it another way: I generally agree with your critique of copyright (though, no comment on the merits Solyndra analogy), but I think it begs some very difficult questions about libertarian conceptions of property rights more generally, particularly the extent to which the government plays a role in enforcing them. 
 
Copyright is a temporary monopoly privilege that has been bastardized.  I will leave it there. Concerning Solyndra, subsidies, and copyright - There is a concern that would need to be explored. Theoretically, governments should run on a balanced budget. As such, when a company - such as Solyndra - receives a subsidy, that means that others have to pay higher taxes. There are three scenarios: 1. The subsidy to Solyndra could have been the creative spark to manufacture an innovative product available to fill a market need.  2. the subsidy may have been granted to Solyndra for political reasons and to give it an unfair market advantage and/or 3. Consumers, because they would be forced to pay a higher tax, may not spend as much on other products thereby stifling economic growth in other sectors of the economy. (Yes the amount of Solyndra money was incredibly small in terms of the whole economy, so the consumer really would not see their taxes rise, But then there are many many many subsidies that cause economic inefficiencies. I am speaking theoretically).

As I write, my thoughts have trended towards the copyright analogy being more in-line as a "barrier to trade" rather than analogous to a subsidy. The reason, is that those who favor "strong" copyright want to control/manipulate the entire distribution chain. Even to the point of maintaining control post-sale and using legal means to stifle competition.  Perhaps a better real-world analogy may the the concept of Mercantilism and the East-India Company. But those examples may be too "old". I'm a little short on modern day examples, but the recent populist outrage over the  US Olympic Uniforms being made in China may be a precursor for a future trade war where government granted privileges could distort the economy.
 
Disney is like Solyndra, and I don't know that many will remember the latter for long. But yes, libertarians should reflexively hate copyright as any other industrial policy/regulation/takings.

+Waldemar Ingdahl copyright is an attack on physical property rights. International comparisons of property regimes such as the one you cite ought take this into account. :)
 
When the government gives Solyndra a subsidy, it literally moves money from  some people's pocket to another's, in a positive, definitive action. When the government grants someone a copyright, it does so first and foremost because it is being asked to do so by the author of the work. Copyright is not mandatory, you don't have to seek it (famous example, Woody Guthrie, see Wikipedia). 

If you as a taxpayer don't want to subsidize Solyndra, it looks like you don't have much of a choice, the government will use your money whether you want it or not. But if you as a consumer want to watch let's say Avatar for free, or copy it and sell it, while again, don't have much of a choice, it can't really be said to be the same as above. The libertarian argument goes like this: by enforcing copyright the government infringes on your right to do what you please with your blank CD in this case. But the government has a different choice to make than above. Instead of choosing between funding Solyndra and taking your money on one hand and leaving Solyndra and you untouched on the other, now the government has to choose between putting some money into  James Cameron's pocket if you really want to watch the movie or leaving you in the impossibility of copying or watching the movie at no cost. I am sorry, but I don't think it's the same. In the first case the government is forcing you into an exchange that, even if arguably "good for you" down the line, it's definitely not a choice, while in the second case the government is forcing you into an exchange, but it is 1) voluntary, you don't have to do it and 2) clear, you know what you get for your money, you get to watch or copy the movie.
 
Jerry, I want to write a long response to this post but won't have time for a couple weeks. I'm a copyright skeptic too, but one must recognize that copyright is as much about tackling Coase's "positive transaction costs" problem (by attempting to reduce otherwise-prohibitive fencing costs) as it is about the incentive-access tradeoff. 

Have you read The Economic Structure of Intellectual Property by Bill Landes & Richard Posner? If not, borrow Thierer's copy and read the first 4 chapters. It's the best treatment of copyright I've ever read (second best is Tom Bell's Intellectual Privilege draft book).

Also, check out Richard Epstein's short paper, Why Libertarians Shouldn't Be (Too) Skeptical About Intellectual Property, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981779
 
Please let me know when you get more of this paper written.  I have thought that intellectual property is a misuse of property rights for some time.  I don't have very much education in this particular area, being a health science major, but ideas are not physical things.  If we trade 1 item for another item we each have one item.  If we each start with 1 idea and exchange ideas then we will each have 2 ideas.

It seems like it's trying to legislate the mind, not property.

There were no property rights on the wheel when it was invented.  But each person who built a wheel had a property of ownership in the wheel that they built.
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