The Ill-Named Imaginary Property Debate
Whether you’re concerned about file sharing and the RIAA, software innovation, or the high prices of patent-protected drugs, you probably have strong feelings about intellectual property right now.
I worry that we’re seeing to much anti-intellectual-property propaganda these days. The term “imaginary property” is a distracting one, for it frames an important cost-benefit issue as a philosophical one. There are great arguments supporting the claim that we need less intellectual property protection. Maybe it’s the case that it’s too costly to try to regulate mp3 downloads; maybe it’s more productive in the long run for the software industry run to use open source; and maybe the pharmaceutical companies are making more money than they deserve.
However, framing intellectual property as “imaginary property” suggests that there is something wrong with the concept of owning ideas. This sort of rhetoric isn’t going to convince anybody, for the ownership of ideas was a good idea in 1623., and it still is now.
Extolling the ideals of open science or open source, or citing the harms of patent-induced monopolies, will never work, for the counterargument is too easy: intellectual property gives the private sector an incentive to innovate, and innovation is good for everybody. The question is whether the benefits of increased innovation outweigh the costs of creating a temporary monopoly. Making progress in the intellectual property can only come from addressing that cost-benefit calculation.
It’s not enough to point out how unfair the RIAA is. I’ve seen rather short-sighted arguments noting how the revenues from file-sharing settlements is not being passed on to the artists. But that’s not the point. The benefit to artists, if there is any, would be indirect: the lawsuits discourage file sharing, which increases cd sales, which makes record deals more profitable for labels, which means record deals will pay artists more. On the other side, it’s nonproductive to point out that file sharing is illegal or hurts artists; the debate here is whether the law is any good. And it may be the case that artists would profit more in a society where digital music could be freely shared. The increased publicity for emerging artists might lead to bigger audience and more money from live performances. Perhaps this effect won’t make up for the big bucks of record deals, but it would be reasonable to argue that the current system, with millions stealing music and only a few thousand unlucky individuals paying the price, can’t possibly be efficient. Especially when Radiohead has shown that giving away music can be profitable.
With innovation (in software and medicineespecially), again there is far too much philosophical rhetoric when this is really just a cost-benefit issue. In his talk at Google, Nobel Laureate Joseph Stiglitz provides a persuasive argument against patenting genes (although I’m not sure whether it applies very widely). If a gene would have soon been discovered and been made publicly available by a NIH-, DOE-, or NSF-funded project, there is very little public benefit from a private company’s discovering the gene marginally earlier. Yet the cost associated with giving that company property of the gene, and therefore a monopoly over medical applications related to that gene, is huge. Whether it’s generally the case that the genes private companies discover would soon be discovered by public efforts, I don’t know. But when that is the case, I think it’s pretty clear that the cost-benefit calculation does not support ownership of genes. This is the sort of argument we need to see more of.
In the case of software innovation, being “anti-imaginary property” is even less effective, for it’s obvious that important innovations have come from the pursuit of profits. You can criticize Microsoft’s current practices all you want (and you might be right to do so), but the company was instrumental in bringing personal computing to the masses. To make progress, OSS fans should focus on how open source software is in the public interest, and they might push for government sponsorship of OSS efforts, for open source software is possibly the purest example of a public good with positive externalities that the world has ever seen.
Jamie said:
Feb 01, 08 at 8:52 amI think the three areas break down quite differently.
In the case of software, the argument is just about good business practice. As long as Microsoft isn’t suing Unix builds for using icons or something, I think companies legitimately copyright their code. Since there’s no one correct way to write an OS, Microsoft owning the Windows code doesn’t limit the ability of an open sourcer to write their own, potentially better, OS. The open source advocates have to prove themselves on the market place. It is apparent that IP isn’t necessary to drive innovation, since great writers will and do work for free. But neither is IP limiting the ability of the open sourcers to produce. In short, I think the status quo is fine for software, and the market is healthy.
In the case of medicine, there’s two difference. One is that access to cheap drugs is in the public interest, and the other is that there’s generally a single best way to make a drug. So once a company invents an AIDS drug and patents it, another company can’t just come along and make a new distinct drug and distribute it at generic prices. But there is clearly also an important positive effect on innovation from the existence of IP. So the laws seem broken on this, in a way that’s causing serious human suffering, and I haven’t heard of any good solutions. In general though, it seems less IP but still some is what’s needed.
Music is actually two different problems. One is the use by artists music of protected music - mashups, samples and covers. In this area, the current laws punish artists who aren’t signed to a major label in a way that doesn’t seem to return anything good to anyone. It seems like the best solution to this is to create some kind of international standard fair flat rate and percentage of profits which is proportional to the similarity to the original (with an escalating scale, to address replica covers used to avoid IP). This would codify both the legitimate use of existing music by artists as a medium, and the right of the original artist. This could also apply to use of music in other mediums, such as film, which right now is unreasonably punitive to independent filmmakers.
The other problem, of course, is internet downloading/listening. In this case, I think the problem is that the medium of digital music just isn’t comparable to the records/cds for which the system was designed. I think it’s also that innovation in music does not require the profit motive. Anyways, we’ve talked about this, and I think the best solution is to treat the internet like a broadcast medium, charge someone (probably ISPs) a flat fee for access, and then distribute that money to artists proportionally to downloads. It’s not perfect, but the current system isn’t helping anyone.
Lokon said:
Feb 18, 08 at 5:53 pmAlright a couple different problems.
First of all, copyright is silly. Copyrights, I believe, are currently parsed for the life of the creator plus seventy years. If the goal is to promote inovation/creation, how on earth do we encourage the dead to create/innovate anymore? At most, copyright should extend the life of the creator or 30 years (if owned by a company say), the current length of time copyrights extends only quells innovation and serves to enrich individuals who have absolutely nothing to do with creation or innovation.
Secondly, I think that software should be patented, not copywritten. Patents are for short duration, again to encourage innovation and software code is more akin to algorithms (which, as math, cannot be patented) or technical instructions then literature.
Finally, we talk about creating incentives. Ok, well let’s look at the incentives for pharmaceutical companies. Companies have a much greater incentive to treat disease as opposed to cure it. Companies have a much greater incentive to discover and promote obscure diseases as though they were a common problem. Companies have very little incentive to treat horrific afflictions of the poor, and a very high incentive to treat the marginally uncomfortable afflictions of the rich. I am not saying compaines are evil, but whenever people bring up the ‘the private sector has to have incentives’ they never consider the negative incentives that exist.
Fourthly, the problem with intellectual property is that it always cedes more territory then it should. What do I mean by this? Ok, so Mickey Mouse is copywritten and trademarked yadda yadda. Say I came up with the idea for Mickey Mouse independently of Disney (not possible nowadays I would imagine) there is no way I could in anyway utilize my unique creation because someone else already claimed it was there’s. Furthermore, I can’t create Mikael Mouse, Mime Mouse or any other variations that would appear too similar. So when you place your flag of intellectual property on an idea, you prevent anyone else from legally using that idea -no matter what path they took to it- and you prevent people from using an idea/drug/whatever that seems to similar to it.
People buy brands even when cheaper generic alternatives (even made by the same company!) exist. For this reason a company that consistently innovated and held itself to the highest standards could still make great profits. For instance, no intellectual property protection exists for the fashion or food industry and yet they have incredible innovation.
So, I am not by any means saying do away with ip. Just I guess, that it is a really complicated issue. Great post btw.
Value and Veracity » Blog Archive » Progressive public economics, championed by Sun said:
Mar 25, 08 at 10:02 pm[...] I mentioned in an earlier post, our standard methods of providing an incentive to innovate - patents or copyright - come with the [...]