Part 1 of a series: The Great Fallacy
of Intellectual Property
The whole idea of intellectual property is that people won't create or invent things if other people can then swoop in and make copies.
So, for example, the thinking goes like this: Why would any novelist go through the trouble of writing a novel if, as soon as the first copy is released, everyone and anyone could simply make copies of the thing without paying so much as a dime to the writer?
This perceived problem – the ability to copy – is what intellectual property law is intended to remedy. Susceptibility to copying is a particular economic conundrum for inventions, works of art, books, music, and other intangibles. Other goods aren't susceptible to copying. If I sell you a bushel of wheat, and if you want more, you'll have to buy more. You can't simply copy the first bushel that you purchased. But artistic works and technological inventions are what economists call "nonrivalous and nonexcludable." That just means that more than one person can use the good at the same time, and you can't do much to stop them. Unless, for instance, there's a law. In which case you can take them to court.
Now, while I say this is "the whole idea of intellectual property," it's true that sometimes people have made arguments for copyright, patent, and other forms of intellectual property that don't come down to this economic rationale. But those are mostly rare exceptions. The real driver of intellectual property law, especially in the United States, has been the idea that if copyists can take a free ride on the creative and inventive labors of others, then people will generally stop bothering to create and invent.
This is the classic economic argument for intellectual property law. And it makes perfect sense. But it turns out to be wrong. Even wildly wrong.
For a variety of different reasons, it is now possible to say – with confidence – that the classic economic rationale for intellectual property law is in error. The reason we can say this now (and maybe could not have said so with conviction not so many years ago) has to do with recent history and recent scholarship. Between what we are seeing taking place on the internet and what we have learned from new academic research, especially in the field of behavioral economics, we can now say that the field of intellectual property law has long been laboring under a false assumption.
I'll explain more in subsequent posts.
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