In this weekend’s Wall Street Journal, Kal Raustiala and Chris Sprigman have penned a thoughtful piece on the relationship between innovation and intellectual property. It’s called “In Praise of Copycats,” and it’s excerpted below.
The conventional wisdom today is that copying is bad for creativity. If we allow people to copy new inventions, the thinking goes, no one will create them in the first place. Copycats do none of the work of developing new ideas but capture much of the benefit. That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.
Except when it doesn’t. There are many creative industries, like finance, that lack protection against copying (or did for a long time). A closer look at these fields shows that plenty of innovation takes place even when others are free to copy. There are many examples of successful industries that survive despite extensive copying. In fact, some even thrive because they are so open to copying.
The empirical case for intellectual property has not been proven (of course, finding a control group is difficult), and it seems as though many are successfully plying their trade in industries where copying is permitted. Ralph Lauren, for example, does not find it hard to land a paying job despite the lack of copyright protection for his designs. Vanguard Funds found no difficulty attracting billions to its S&P 500 index fund despite the lack of a process patent.
But it seems to me that the real question is whose interests a putative system of intellectual property is to protect. Is it more important to create a strong property right in patents, copyrights and trademarks so that inventors and their business interests are protected? Or is it more important to loosen the system so that the general public reaps the benefits? Ultimately, that seems to be the tradeoff.
I would personally prefer the latter, not just for the social consequences, but because the property right to what we now call intellectual property is a synthetic one anyway. It finds its justification more in the law than in first philosophy.
But given that, wouldn’t we do well to determine the legal foundations of intellectual property? Of course, we have to turn to Article 1, Section 8, Clause 8 of the U.S. Constitution:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
“To promote the Progress of Science…”? Interestingly, this assumes that granting a private property right as such would do so. On the other hand, if it does not, then perhaps the legal protection of intellectual property is ironically unfounded.
In areas as diverse as fashion, finance and football, intellectual property is unprotected, and not only does the consumer ultimately benefit, but it certainly seems as though progress is not hindered. Perhaps there’s something to the copycats after all.
You may have noticed a hiatus on this blog that was somewhat longer than normal. I was on vacation in lovely Costa Rica with my lovely wife (since my nom de plume is Socrates, I shall refer to her as Xanthippe). To prove it, I took a picture of a politician that I snapped outside of my hotel in Tamarindo. I believe her name is Nancy:
For the biologically curious, that’s actually a howler monkey. Or in Spanish a mono aullador.
Anyway, to kick off my triumphant return, I’m going to give you a three for one deal of posts that I found infuriating, depressing, and silly. See if you can put them in order!
First, in court case in Colorado, the FDA is claiming jurisdiction over an individual person’s stem cells.
In another outrageous power-grab, FDA says your own stem cells are drugs—and stem cell therapy is interstate commerce because it affects the bottom line of FDA-approved drugs in other states!
…The Centeno-Schultz Medical Clinic takes your blood and bone marrow, puts it into a centrifuge machine that separates the stem cells, and cultures it to get more cells before a doctor puts them back in your body to repair damaged tissue. The FDA states that when the stem cells are cultured, they become FDA-regulated drugs. The clinic has argued numerous times that stem cells aren’t drugs because they are components of the patient’s bone marrow from his or her own body.
How long before the FDA asserts jurisdiction over my white blood cells?
Secondly, and in completely unrelated news, the bell continues tolling the tragic death of the anti-war left. It seems as though a majority of self-identified liberal Democrats now support keeping Guantanamo open as well as the use of drones for targeted killings. At the rate they’re going, I give them until 2014 before they re-invade Iraq.
It is exactly this kind of blatant partisan hackery that makes me say that “partisanship is the first resort of the feeble mind.” Perhaps I should copyright that…
And finally, in another completely unrelated topic, talentless pop-”artist” Shepard Fairey, the hack behind the ubiquitous Obama-Hope posters, pleaded guilty to criminal charges. But get this, the criminal charges stemmed from fraud and misconduct related to the civil suit that he himself filed against the AP.
Shepard Fairey fails so hard he can’t even sue people right.
Fairey “went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation, creating fake documents and destroying others in an effort to subvert the civil discovery process,” US Attorney [Preet] Bharara said in a statement…
Fairey sued AP in 2009, seeking a ruling that his poster didn’t infringe the copyright because his use of the photograph was protected by “fair use.” The news organisation countersued.
Throw the book at him.
And welcome back to me.
Matthew Ingram at GigaOm has written a piece worth exploring, called “Looks like Congress has declared war on the internet.”
In a by now cliched story, Congress has taken that which they do not understand (the internet), hitched it up to something that they do (overregulation), and squeezed several tight coils of bad legislation right on our collective front yard. In pertinent part, Ingram spells out the problem:
What it really is, however, is a disaster for the internet. As the Electronic Frontier Foundation notes in a post on the proposed legislation, the law would not only require ISPs to remove websites from the global network at the request of the government or the courts (by blocking any requests to the central domain-name system that directs internet traffic), but would also be forced to monitor their users’ behavior in order to police acts of copyright infringement. Providers who do not comply with these requests and requirements would be subject to sanctions. And in many cases, legal hearings would not be required.
The bottom line is that if it passes and becomes law, the new act would give the government and copyright holders a giant stick — if not an automatic weapon — with which to pursue websites and services they believe are infringing on their content. With little or no requirement for a court hearing, they could remove websites from the internet and shut down their ability to be found by search engines or to process payments from users. DMCA takedown notices would effectively be replaced by this nuclear option, and innocent websites would have to fight to prove that they deserved to be restored to the internet — a reversal of the traditional American judicial approach of being assumed innocent until proven guilty — at which point any business they had would be destroyed.
So the internet, which is as vibrant, useful, and frankly awesome as it is because it has not heretofore been strangled by the stupidity of a government that is always at least two decades behind the times, will now be strangled as such. Wonderful. Way to look out for our best interests, Congress.
First, a small apology for being away for so long. My life has changed greatly, in ways anticipated and otherwise, over the last month or so. I’ve gone from flying high to getting punched in the gut (rhetorically), and it has been quite a rollercoaster. I sometimes pine for the simpler days of general boredom.
But lest you be too concerned over the fate of this blog, or if you are quite charitable, the state of its author, please know that I’ll be back in posting form. We are not done here. As Ludwig von Mises said, “tu ne cede malis, sed contra audentitor ito.”
In the meantime, here is a short video on the history of copyright and its various changes over the years. Of course, the extension of copyright terms has been to benefit companies set up by the success of the original authors, but 100+ year terms clearly contradict the original spirit and intent of the copyright laws, which was to foster and encourage the creation of original works. Instead, in an ironic turn, the copyright laws now manage to stultify the creative processes.
My recent post on copyright trolls has been rebutted by Jeff Cobia, writing at his blog here. I suppose I should have expected it, since I kept the post short and fairly conclusory, as I realize I have a tendency to run on quite a bit. My own lack of cited support seems to have been an invitation to trouble.
Nevertheless, I disagree with Jeff’s assertion that my post was “rubbish,” and I will accept his invitation to war. However, since I respect his intellect, I imagine that this will be an exceedingly polite one. That said, I shall now cry havoc, and let slip the blogs of war.
The Benefit Side of Cost-Benefit Analysis
Jeff immediately goes after my parenthetical – “Even if you were to concede that economic benefits flow from IP protections (and I would argue that, empirically, they do not)” – and I am not terribly surprised that he has. My use of the term “empirically” was, I concede, a mistake, and that is precisely because the question of economic benefit to authors under copyright is an empirical one. Ironic, no?
Of course, one cannot prove that the author will benefit, in the strictly pecuniary sense, more under a system without copyright, and this is so for exactly the reason that Jeff has pointed out. If one assumes that the work is unique, one cannot compare its protected sale with its unprotected sale unless one has access to parallel universes.
However, I believe that authors would absolutely not be cast into penury with the removal of copyright. Casual observers note the attachment of copyright and the flow of economic benefit and assume a cause-effect correlation. I propose that this may very well be far weaker than commonly assumed.
I do have some empirical backing, of course. This will obviously not be an exhaustive list, but I will point out a few highlights.
Germany and England
First, there is the case of Germany and England before the rise of copyright. Copyright is a relatively new invention, with England adopting it in 1710. Germany, by contrast, had no central government and no copyright by default until 1871. This century and a half provides a very useful empirical resource for assessing authors’ relative ability to prosper with and without copyright.
Historian Eckhard Hoffner has compared the data between the countries. In England, authors were paid for sale of rights to their work, as has continued in the modern age. In Germany, where pirate publishing was “virtually allowed,” authors tended to be paid by sheet and edition, and by self-publication through subscription. Even best-sellers were reprinted quickly by “pirate” publishers. In both countries, however, book authors tended to earn a comparable average, and in both countries, writing was a viable career.
The biggest difference was at the poles. In England, the >1% who were wildly successful (think of the J.K. Rowlings, the Stephanie Meyers, the Stephen Kings of our current age) could make a fortune. The “fat middle” of the bell curve, however, was very comparable to Germany.
In Germany, however, the skew was more toward the other end – because writing was viable and the publishing industry was made far more efficient through the lack of copyright, there were many more books published, by a factor of 10 at the height (n.b. Germany had twice the population, but fewer urban citizens).
While the top >1% in Germany never attained the dazzling fortunes of their English counterparts, far more Germans were writing, making a living writing, and more importantly writing more.
The Lengthy History of Publishing
The common viewpoint of publishing is a static one (this is not limited to publishing, of course). Publishing is what it is, and its implications are derived only from the present state of affairs. However, the internet has come along, and the game is changing. In a historical blink of an eye, the rules will be completely rewritten.
Funny that we find this so amazing. Although the internet is a complete and total revolution in the publishing world, it is not the first, and it will not be the last. Consider the long history, and the question “how will authors be paid without copyright?” becomes less relevant, because it soon becomes clear that the question itself is saddled with assumptions from the present day. As it happens, authors have always been paid, and the assumptions from the present day are quite limited in their usefulness in explaining history beyond their short timeframe.
Scribes’ work had been largely unchanged for centuries until the advent of moveable type in the mid-1400s. Serious consternation within the monastic class followed, but within decades, monasteries had set up their own printing houses and contracted out scribes’ work to established private printing houses.
The quantity of published books skyrocketed. According to historian Michael Clapham, within the 50 years following the invention of moveable type, there were more books published than had been published since “Constantine founded his city in A.D. 336.” The number of editions since the 15th century must number in the billions. (Michael Clapham, “Printing,” in Charles Singer et al., eds., A History of Technology, vol. 3, From the Renaissance to the Industrial Revolution, Oxford University Press, 1957. p. 37)
Perhaps more importantly, works beyond the Bible, Augustine, and Etymologiae were being published. Despite having no copyright protections, the author was born.
Digital distribution has the potential to do for books what the moveable type did, but on a much larger scale, and like the monks of the 1400s, copyright hawks are similarly concerned. But remember that copyright law is a relatively recent invention. Even in England, the earliest adopter, copyright was not established until the 18th century. In the meantime, we certainly did not find that authors were discouraged from their pursuits.
Although there could never be an empirical study of the future of publishing (a history of the future?), one can reasonably expect that, if allowed to do so, history will tend to follow similar courses, albeit through different channels. The internet is no less a revolution than the printing press, but in both cases, I think the evidence has – and will – accrue to side of non-restrictionists.
Far from discouraging publishing, I think the internet has so far fostered an explosion in publishing of all types, and for the most part, copyright has never been vigorously enforced in digital media. I expect that authors will find ways to monetize their own publications outside of the restrictive licensing system of traditional, fixed-media copyright. Jeff has already mentioned one who does – Cory Doctorow – but that is merely one avenue (and one that is probably more common than it seems). Perhaps the most profitable has not been conceived of yet.
Monetization in a Pirate’s World
This leads into the discussion of monetization, and I am sure that I will be accused of unwarranted assumptions if I did not elaborate on the above. I do not think that monetization of authorship outside of the copyright context is at all a pie-in-the-sky concept. In fact, it has been done before, and to great effect.
Consider the music industry. Despite the fact that the RIAA and [some of] its members have somehow managed to survive, it seems as though it is mainly a vehicle for lawsuits. People simply do not buy CDs anymore. What is left of the physical CD industry will soon be dead. Even iTunes, the great creative destroyer, may not survive long on its first-mover advantage unless it can continue to give the people what they want. Overwhelmingly, what the people want is “free” music.
So how would artists be paid? Well, it did not take the internet to come up with an answer for this. Bands like the Grateful Dead have been doing it since the age of vinyl. Their entire business model was at one point based on the bootleg; they actively encouraged their fans to record, swap, and distribute their concerts. They found, unsurprisingly, that this had the effect of driving customers to their concerts. In fact, by encouraging people to act outside the scope of copyright, they have likely driven more fans to pay for more-lucrative concert tickets that would otherwise have been possible.
Before this is dismissed as a case isolated to music, or even to jam bands whose music is only “good” while one is still under the influence, consider what the Mises Institute found when it put the Ludwig von Mises book Omnipotent Government online for free download, as related by Jeffrey Tucker.
The Institute set about freeing the book from its copyright shackles by contacting its original publisher. Although the book was never a strong seller, the Yale Press still insisted that the Institute pay it in advance for what they assumed would be lost sales. The Institute did so, and put the book online.
By opening up the text for reading, discussion, linking, printing, etc., the Mises Institute sold more copies of Ominpotent Government in the month after its free release than it had in the 10 years prior. Yale Press ended up with both a payment for lost sales and a plethora of extra sales. It turns out you do not even need a ticketed performance to monetize freely-released copyrightable works.
Of course, all of the above has assumed that pecuniary gain has driven authorship, when in many instances throughout history it clearly has not. For example, although academia has never been one to take copyright lightly (with the notable exception of MIT, which leads the world in Open Courseware), many academics have found that non-remunerative publication, even self-publication, has led to consequences beyond a lack of royalty checks.
In the world of “publish or perish,” many academics have found that being noticed is far more useful than getting a small check for publication in a low-circulation scholarly journal. Of course, this can be monetized as well, with prestigious professors being offered positions at prestigious universities, and professors of more practical fields being paid for consultations or a selective group of clients. But prestige can be satisfying in its own right.
The fame and esteem derived from wide adoption of an eponymous theory or process can be overwhelmingly positive. Imagine how many cocktail party invitations Jeff would get as the progenitor of the lifesaving “Cobia Technique.” But I digress.
In the end, the situation comes down to cost-benefit analysis, and I do concede that not enough data are available or even possible to determine the exact amount of benefit. However, on the strength of the above, and other similar scenarios, I would argue that the benefits of copyright are far overstated by copyright trolls similar to the Las Vegas outfit referenced in my original post. I would also argue that they are likely to be overstated even by those with their feet more solidly on the ground, like Jeff.
There is no way to prove it, to be sure. But there is no way to disprove it either.
So perhaps it is more useful to look at the cost side of the cost-benefit analysis. That, naturally, is what I will take up next. Stay tuned.