Saturday, April 26, 2014

Joseph S. Diedrich: Does intellectual property defy human nature?

  A music-composition professor of mine once lamented that without copyright protection, Western civilization would cease to exist. Most of us take intellectual property (IP) for granted, assuming it is ethically and economically necessary. We’ve become so blasé about IP that heavy-handed FBI warnings and billion-dollar lawsuits don’t faze us in the slightest. Yet despite the unquestioned consensus, intellectual property actually defies basic tenets of human nature.

  When an author pens a book, he wants it to be read. When an artist paints a portrait, he wants it to be seen. When a tinkerer invents a widget, he wants it to be used. Of course, they also want to be compensated for their contributions to society. Fortunately, sharing ideas and making money aren’t mutually exclusive desiderata.

  Consider for a moment what doesn’t "enjoy" intellectual-property protection. Surpassing one trillion dollars in revenue annually, the worldwide fashion industry innovates and profits without IP. In a paper entitled "Where IP Isn’t," law professors Kal Raustiala and Christopher Sprigman argue that when it comes to fashion, "copying functions as an important element of, and perhaps even a necessary predicate to, the industry’s swift cycle of innovation."

  Likewise, intellectual property is not an ingredient in recipes. While cookbooks and commentary imbued with enough "expression" may be subject to copyright, lists of ingredients and corresponding sets of instructions are not. Although Dominique Ansel was able to trademark his Cronut, he cannot preclude other bakers from imitating the recipe and calling the croissant-doughnut hybrid by another name. Even in the absence of IP, chefs continue to pique the interest of our taste buds with creative new dishes.

  Then there’s open-source software, an industry experiencing exponential growth. Its developers go out of their way to voluntarily relinquish copyright protection that would otherwise be available to them. Even the ancestors of today’s heavily protected closed-software programs were developed in an IP-free environment. To quote Bill Gates, "If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today."

  Intellectual property traces its lineage back a few centuries, but the history of creation and innovation dates back to the advent of man. Shakespeare never received a copyright royalty, Gutenberg didn’t own a patent for the printing press, and the Dead Sea Scrolls weren’t labeled "all rights reserved."

  What about the gossiping schoolgirl? Her main ambition in life is to gain information to which few or no others are privy. Exclusive information instills in her a peculiar sense of power and control. Yet she is not satisfied, for within her nature resides the desire to disseminate the exclusive information she has gathered — first with her inner social circle and eventually with the world.

  Not limited to the schoolgirl, that phenomenon is an inherent feature of the flow of information and knowledge. As far as human nature is concerned, it is immanent. Everyone wants to know things. There is value in the possession of ideal resources.

  More accurately, there is potential value; that is, wealth can be attained under certain conditions in the future. In the case of ideal resources, dissemination fulfills that promise. Because the value of possessing an ideal resource can be realized only upon dissemination, prolonged exclusive possession generates no benefit. The schoolgirl couldn’t care less about being the only one to know a secret; exclusivity in and of itself does her no good. Advantage comes from being the first possessor of an ideal resource; more broadly, earlier possessors have an advantage over later possessors.

  As an ideal resource inevitably spreads to ever more individuals, its early possessors lose none of their grandeur and legitimacy. On the contrary, they continue to amass wealth. So do the later possessors, but not at the expense of the early possessors. Ideal resources benefit from the network effect. As non-scarce, anti-rival "goods," their utility increases in tandem with increased dissemination. The more the knowledge is shared, the more valuable it becomes.

  The IP conundrum vis-à-vis human nature makes sense upon consideration of the historical origins of patent and copyright law. In addition to being a technological leap for writers, the printing press was also a source of fear for governments. To quell its angst, the English monarchy granted an exclusive monopoly to the London Company of Stationers in exchange for the "seizing, taking, burning … books or things … contrary to the form of any statute, act, or proclamation." As University of Georgia law professor L. Ray Patterson writes in The Journal of Intellectual Property Law, "The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world."

  Early origins in privilege and censorship formed the foundation of the first modern, statutory expressions of intellectual property — the Statute of Monopolies in 1624 (patent) and the Statute of Anne in 1709 (copyright), both in Great Britain. IP law was not conceived as a protection for authors and inventors; it was conceived as a system of privilege and (even eponymously) monopoly.

  Great works of literature, towering skyscrapers, and preposterously intelligent computers are the result of our innate tendencies to create, share, and innovate. They are not the result of laws grounded in state control of human expression. Would the elimination of intellectual property result in the collapse of Western civilization? Of course not.

  About the author: Joseph S. Diedrich is a Young Voices Advocate and a law student at the University of Wisconsin. He also holds a degree in music composition and works with multiple internet start-ups, including

  This article was published by The Future of Freedom Foundation.

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