defending the right to innovate
Monopoly corrupts. Absolute monopoly corrupts absolutely.
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Proceedings of a conference in Potsdam last October. In addition to some invaluable history and analysis - I found especially interesting the article by Stan Liebowitz. Stan is unique among economists in being strongly in favor of copyright, even in its current exaggerated form. What I found striking about his article is that he seems to have given up on the economic argument in favor of copyright and turned to a moral argument. If Stan can't defend the economics of copyright anymore, nobody can.
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Check out Prof. Adam Mossoff's recent guest blogging at Volokh.com where he discusses the history of the U.S. patent system via how the sewing machine developed, and the slew of lawsuits it generated in order to try and stifle competition.
Mossoff seems to advance some conclusions that I take issue with (i.e., that legal innovations such as 'patent pools' are solutions worth considering to help help resolve patent troll problems - as opposed to more fundamental reforms of patent law), but its still stimulating reading.
Read it all on one page here:
Those who have read our book may be aware of the story of 19th Century copyright in the US - in which English authors could not copyright their works in the U.S. We cite Arnold Plant, who quotes a commission report suggesting that English authors never-the-less got paid by American publishers. Meera Nair has the quotation from the original
it is worth while for [American publishers] to rival each other abroad in their offers for early sheets of important works. We are assured that there are cases in which authors reap substantial results from these arrangements, and instances are even known in which an English author's returns from the United States exceed the profits of his British sale
This piece was published days ago and has been up on the internet but largely passed without notice, much less comment link here. I found it valuable as another case where a major innovation took place without IP--no copyright and no patents. It occurred at its own pace, driven by the intellectual interest and dreams of a number of people, cooperating informally to bring about the Internet. Read it and remember, the next time you hear that little innovation would take place without IP.
There was an interesting story that ran this morning on NPR (transcript here) about the fact that despite all of the secrecy surrounding the Manhattan Project, the U.S. Government was secretly patenting the various components of the first atomic bombs and related nuclear technology. This was done apparently to ensure that the U.S. Government would have monopoly control over nuclear technology after the war (as opposed to those pesky scientist actually creating the technology), despite the fact that the process of filing for a patent could itself pose a security risk. To quote the article
Even during the war, some people feared the patent project might backfire. They worried that spies might be able to figure out that the United States was developing a bomb by trying to submit their own patent applications. Outsiders who filed patent applications on related topics got a note back saying their patent had been stamped secret, a clue that the government deemed the topic sensitive.
No spies ever figured this out, though.
The Google cartoon guy, whose name I forget, honored the 161st birthday of Alexander Graham Bell today. Why? Now that we know that he didn't invent the telephone and that he was a thief and a plagiarist, what's the point?
...or The Case of the Plagiarized Patent.
School children are dutifully taught that Alexander Graham Bell invented the telephone and historians and biographers have defended his claim. But now science and technology journalist Seth Shulman has written an icon busting book The Telephone Gambit: Chasing Alexander Graham Bell's Secret, which reveals the real history behind one of the greatest inventions. Don't miss the first of the comments appended to the first review at the Amazon page.
John Steele Gordon has a fine review in the Wall Street Journal today "False Claim, Future Fortune". He rightly rates Shulman's book "solid history," and notes that it reads like an Agatha Chritie whodunit. The story has enough human interest and twists and turns that it could be turned into a movie. It even has a romantic angle Hollywood would like.
You can order from Amazon or other online vendors. Strand Bookstore had six copies at half price today, and they ship anywhere. (New York, NY 828 Broadway at 12th Street, 212-473-1452, www.strandbooks.com.)
History is supposedly written by the victors, so there has been very little written on the cultural (as opposed to the legal) history of copyright in the U.S. during the 19th century. Now Eric Anderson has gone a long way toward redressing this imbalance with his superb PhD dissertaion, available online, Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891 , which can be found at questioncopyright.org .
Here is the 1.83 MB Pdf file .
This study fills a yawning gap in copyright history, and offers a radically different focus on the development of this institution from the dominant legal perspective. The bookends are the Copyright Act of 1831, and the International Copyright Act of 1891, but there is a good summary of early American copyright history and its British background.
The controversies, schools of thought, and heroes and villains are well portrayed in this thoroughly researched work. The growing scope, duration, and, especially, complexity of copyright law are highlighted. (No prize for guessing which profession hit the jackpot.) Important legal cases and legislative battles are discussed.
But the most interesting part of the book might be the absorbing discussion of the magazine and newspaper debates over copyright, ranging from the Southern Literary Messenger (which he notes is now online) to the Chicago Daily Tribune (which published dozens of articles opposing international copyright) to Benjamin R. Tucker's magazine Liberty (alas mentioned only in a footnote, which surely undervalues the influence of its decade-long debate--and Lysander Spooner is not mentioned at all, but the obscure John Blair Dabney is, rightly, considering the strength of his argument). If you've ever wondered why the American Copyright Club had such little influence, the answer is here. Like most historians of this subject, he discusses Charles Dickens' American campaign for international copyright, but neglects to mention that Dickens was actually paid royalties by three American publishers, if not by the ones that printed unauthorized editions.
Although he doesn't focus on the economics of copyright, he does discuss the economic impact of protection, the effect of rent-seeking, and the prices of copyrighted and uncopyrighted books in both England and America. "Cheap books" was the battle cry in America and rightly so.
In an illuminating passage, he notes "that many academic approaches ... miss how copyright is -- in practice and in ideology -- a mechanism for regulating the market." He points out that this leads to a misunderstanding of the development of copyright and overemphasizes "romanticized authorial propaganda for causal agents of change." This is only one of several historiographical myths he punctures.
The bibliography is excellent, although articles by libertarian writers N. Stephan Kinsella, Roderick Long, and Tom G. Palmer are listed even though they are not cited or discussed in the text or footnotes. Why this is so I have no idea. Maybe someone who knows the ins and outs of academic publishing better than I do can explain this.
As for the meaning of "Pimps and Ferrets," you'll have to read it to find out. I haven't read anything as interesting in a while.
One of the main arguments put forth by the copyright reformist camp is that the term of copyright has gradually been lengthened until now it's as long as life of the author plus 70 years. Incentives all the way to the grave and beyond, if you will; but this doesn't bode well for innovation and is increasingly problematic with more legal wrangling and wasteful rent seeking.
IP advocates like to analogize IP to physical property insofar as they can, while noting obvious differences too. See, for example, Frank Easterbrook's essay "Intellectual Property Is Still Property." (No link available, but it's reprinted in Adam D. Moore, ed., Information Ethics .)
Physical property, as everyone grants, has no term limit, unlike IP. Physical property also never enters the public domain, although it can be abandoned, and then re-homesteaded by a new owner. IP does enter the public domain though, after the expiration of a copyright (or patent).
Lysander Spooner , a 19th-century opponent of slavery and, eventually, of the U.S. Constitution, thought this was bizarre. In his uncompleted 1855 tract The Law of Intellectual Property , he argued for a perpetual right of property in ideas, and stated that it: "is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle , exists between the two cases" (p. 30). (Spooner's italics.)
So here's my challenge to lawyers such as Frank Easterbrook, Lawrence Lessig, and William Patry: if you really believe that IP is property and that IP holders' rights should be protected just as their rights in their material property are, why not overturn Sonny Bono and extend copyrights (and patents) indefinitely, as long as the underlying IP has not been abandoned by its owner(s)? So why stop a mere 70 years after an author's demise? Presumably this would also put an end to rent seeking and endless lawsuits.
Failure to do so strikes me as prima facie evidence (to quote my old monetary theory prof. in another context) that IP is not property, and in fact is just an old fashioned monopoly. In other words it's the monopoly formerly known as intellectual property. And where there's a monopoly, there's bound to be a gaggle of lawyers chasing from behind.
Most Recent Comments
Catching Up The Ruth Lewis post is interesting, but incomplete. The very economies that are supposedly
at 01/31/2013 07:21 AM by Anonymous
Canada - A Copyright Year in Review Hello. I don't like copyright law but I don't think it will go away in my life. I started a
at 01/02/2013 04:58 AM by Sabrina
Canada - A Copyright Year in Review Regarding the Copyright Act revision, let it be known that there was substantial opposition to the
at 12/28/2012 06:57 AM by Byte
From the Trenches Innovative remarks indeed. Cecil Quillen suggests the system needs to be modified, which I think
at 12/21/2012 06:18 PM by Anonymous
The golden age of beer innovation ""Perhaps the first reason [for the rate of patenting] is that during this period the rate of
at 12/20/2012 05:46 PM by Anonymous
Obama Transition Team Member on Holy cow. None of Your Beeswax is a Canadian (Laurier Optical is Canadian only). You don't even
at 12/19/2012 06:08 PM by Anonymous
The golden age of beer innovation Adam_Smith: Until the latter half of the 19th century, corporations routinely filed for patents,
at 12/19/2012 04:54 PM by Brewing Is Fun
The golden age of beer innovation It would seem from the account given in the previous comment that it was innovation that stimulated
at 12/19/2012 04:04 AM by Adam_Smith
Would books be published without copyright? taxpayer: "The Wealth of Nations" went through five editions in the first 13 years of publication,
at 12/05/2012 08:31 AM by Anonymous
Would books be published without copyright? I was wondering whether free-market advocate Adam Smith made much money from his books. On-line
at 12/04/2012 09:59 AM by taxpayer
Open Book Publisher Great work! Here's my quick review of the book: It seems to me that behavioral economists
at 11/27/2012 08:38 PM by Aaron Wolf
250000 Patents for Smartphone Technology Hi. Sorry for posting here as I cannot see a contact us section. How can I contact you? I have
at 11/27/2012 10:17 AM by Thomas Stringer
The golden age of beer innovation With respect to the beer innovation paper, I have to wonder whether the authors were overly focused
at 11/23/2012 08:31 AM by Brewing Is Fun
The golden age of beer innovation With respect to Christian's comment that "there was rapid innovation without recourse to patents,"
at 11/21/2012 03:16 PM by Beer Innovation
250000 Patents for Smartphone Technology I have seen several analysts who believe that the number of patents in this area indicate that our
at 10/24/2012 08:40 AM by Anonymous
Would books be published without copyright? Gael: I would be curious as to how much copyright litigation is costing. I have never seen any
at 10/19/2012 01:12 PM by Anonymous
Would books be published without copyright? I think it's going to evolve towards a better system with or without copyright. Right now copyright
at 10/19/2012 11:46 AM by Gael N.
Patents and Secrecy Of course patents are not the "only" answer. That is just plain dumb. There are multiple business
at 10/13/2012 08:47 AM by Anonymous
Open Book Publisher Thanks for the great book, and for making it free culture. It's worth mentioning that they don't
at 10/12/2012 04:41 PM by Chris Sakkas
What the New York Times Should Have Asked What is the patent number for the
at 10/09/2012 08:44 AM by Anonymous