Against Monopoly

defending the right to innovate

IP History

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Sonny Bono Was a Piker

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.


I think Lessig is well aware that IP is a monopoly. If I understand him correctly, he thinks it a useful one, so long as its term is limited -- but he doesn't argue that it's equivalent to physical property. If I have this wrong, I'd appreciate a link or two to set me straight.
Good point. In Free Culture Lessig notes that it's one thing to say "It's my property, and I should have it forever," but an altogether different thing to say "It's my monopoly, and I should have it forever" (p. 88).

Copyright was a regulated monopoly in 17th century England. The booksellers also had a monopoly, which was broken by the courts.

Lessig should get out of the reformist camp and come on over to the abolitionist side. Of course, his employer might have a problem with this, as he teaches copyright law and so must tow the copyright line, I would think.

Patry, btw, referred to Crosbie Fitch as a nihilist when Crosbie commented at his blog that abolishing copyright would have some salutary effects. Were the abolitionist opponents of slavery nihilists? Of course not and neither are copyright abolitionists.

Easterbrook and Adam D. Moore are probably better exemplars of the point I was making. The latter has a detailed discussion of tangible property rights compared to IP rights in his book Intellectual Property and Information Control .

It's difficult to argue common sense nowadays, especially if it's a radical departure from status quo. For an idea to be successful, it essence must be watered down with elements from directly contradictory ideas until what's left makes no sense whatsoever.

Thus we have people who agree that copyright is an incredibly bad idea, and argue that therefore it's term should be halved.

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